ONTARIO COURT OF JUSTICE

DATE: 2022 04 12

COURT FILE No.: Toronto, College Park 20-15002073

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

JASON RONALD MARTIN

Before: Justice J. W. Bovard

Heard on: January 27, 28, 2022

Reasons for Judgment released on: April 12, 2022

Counsel:

Mr. A. Linds ……………………………………………………………counsel for the Crown Mr. A. Hrivnak ………………………….counsel for the defendant Jason Ronald Martin

Bovard J.:

[1] These are the court’s reasons for judgment after trial and for its ruling on the accused’s Charter applications.

[2] Mr. Martin is charged with the following offences that allegedly occurred on April 5, 2020:

1. Operate a conveyance while impaired by alcohol or a drug or both (s. 320.14 (1) (a) Criminal Code).
2. Within two hours after ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood (s. 320. 14 (1) (b) Criminal Code).
3. Breach of a probationary condition by being outside of his residence in a drug induced or intoxicated state (s. 733.1 (1) Criminal Code).
4. Breach of a probationary condition by possessing or consuming unlawful drugs or substances referred to in the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter (s. 733.1 Criminal Code).
5. Possession of ketamine, a substance included in Schedule I of the Controlled Drugs and Substances Act contrary to s. 4 (1). (1.07 gms.)
6. Possession of a substance included in Schedule III of the Controlled Drugs and Substances Act; namely, LSD, contrary to s. 4 (1) of the Controlled Drugs and Substances Act. (1.21 gms.)
7. Possession of a substance included in Schedule III of the Controlled Drugs and Substances Act; namely, psilocybin, contrary to s. 4 (1) Controlled Drugs and Substances Act. (21.90 gms)
8. Possession of a substance included in Schedule III of the Controlled Drugs and Substances Act; namely, psilocybin, contrary to s. 4 (1) Controlled Drugs and Substances Act.
9. Possession of 30 grams or more of dried cannabis in a public place, contrary to s. 8 (2) of the Cannabis Act. (59.9 gms.)
10. Driving while license is suspended, contrary to s. 53 (1) of the Highway Traffic Act.

Introduction

[3] On April 5, 2020, Mr. Martin was driving a car in an erratic manner. A friend was with him in the passenger seat. As a result of information received from a concerned citizen, the police went to the location where he was and arrested him for a drinking and driving offence.

[4] When they searched him incident to the arrest, they found several types of drugs on his person and in the car so they arrested him for possession of them.

[5] In addition, the police determined that his license was suspended so they charged him under the Provincial Offences Act.

[6] Next, the police took Mr. Martin to the police station to give samples of his breath. After they paraded him, they conducted a strip search because he was charged with possession of drugs. The police also had information that he had outstanding firearms charges, but the booking-in officer who authorized the search testified that regardless of the information about the firearms, he would have authorized a strip search solely based on the drug charges. The defence argues that the evidence shows that this officer routinely authorizes strip searches of persons who are charged with drug offences.

[7] After the strip search, Mr. Martin took the breath tests. He registered readings of 143 mgs of alcohol in 100 ml of blood at 10:29 a.m. and 127mgs of alcohol in 100 ml of blood at 10:52 a.m.

[8] The defence argues that the police breached Mr. Martin’s rights under s. 8 of the Charter because they strip searched him as a routine course of conduct and there is no record of how they conducted the search.

[9] In addition, in paragraph 3 of his written submissions the defence argues that the police did not advise Mr. Martin of his drug charges or caution him until an hour after his arrest, thereby breaching his rights under ss. 10 (a) and (b) of the Charter. However, in the section of his written submissions entitled “C. Section 10(a) and 10(b)” at paragraph 64, he alleges that it was half of an hour.

[10] Furthermore, the defence argues that the police breached Mr. Martin’s rights under s. 9 of the Charter because they did not bring him before a Justice within 24 hours as they are required under s. 503 (1) of the Criminal Code.

[11] The defence asks for a stay of proceedings under s. 24 (1) of the Charter, or in the alternative, that the court exclude the evidence against Mr. Martin under s. 24 (2) of the Charter.

[12] In addition, concerning the drug charges, the defence argues that the Crown did not prove them beyond a reasonable doubt.

Issues

[13] The issues are whether the police breached any of Mr. Martin’s rights under the Charter, and if so, whether the court should grant a stay of proceedings or exclude the evidence against him. And as always, whether the Crown proved the charges beyond a reasonable doubt is in issue.

The Evidence

[14] Mr. Dennis Kehoe was walking his dogs around 9:00AM on Sunday morning, April 5, 2020, when he heard a very loud sound. He saw Mr. Martin driving on Mount Pleasant Boulevard with the driver’s side front wheel “blown out”. The tire was in pieces. He was driving on the rim of the wheel.

[15] The car pulled over close a nearby parkette. He approached the car and from about 30 to 40 yards saw Mr. Martin and a woman out of the car at the back of it hugging each other. Then he saw Mr. Martin urinating on the woman.

[16] After talking to the woman occupant, Mr. Kehoe called the police and left the scene.

[17] However, he kept observing them. He saw Mr. Martin and his friend get back into the car and drive down the street. Mr. Martin was driving. Mr. Kehoe called 911 again. As he did this, Mr. Martin pulled over. Mr. Kehoe talked to Mr. Martin and the woman.

[18] In cross-examination, defence counsel refreshed Mr. Kehoe’s memory with his statement to police regarding who was driving the car. He told them that the first time that he saw the car he was not sure who was driving because he was focused on the flat tire. But the second time he saw Mr. Martin driving. The woman was in the backseat. He never saw Mr. Martin occupy any other location in the car other than the front driver’s seat.

[19] Concerning their sobriety, Mr. Kehoe testified that, “(inaudible) seem to be not just a little bit (inaudible) very out of it”. The Crown asked, “And – and I’ll ask you just to clarify ‘out of it’ being – what’s your explanation (inaudible) mean?” Mr. Kehoe replied, “Not just a little bit drunk, very drunk”.

[20] It is not possible from the transcript to know about whom Mr. Kehoe was speaking.

[21] Later, the Crown followed up on this asking, “Did you – you mentioned (inaudible) you believed both individuals were – were very – I think you said intoxicated – very drunk. What else if anything that I haven’t asked you about did you observe that led you to that (inaudible)?”

[22] Mr. Kehoe replied, “Well (inaudible) she – she mentioned “We’re really drunk”. And (inaudible) stagger (inaudible) and slurred speech when I was – when I was talking to her. (inaudible). So those were – those were the (inaudible)”.

[23] Mr. Kehoe said that Mr. Martin had on a ball cap. It “might’ve been red – kind of – a flat brim as opposed to rounded”. He thinks that he was wearing black clothes. He might have had on a jacket.

[24] Then the police arrived, and he left the scene.

[25] Sergeant Artinian arrived on scene around 8:42AM and saw Mr. Martin in the front seat of the car. As he walked towards the car, he got out of the driver’s side. A female got out of the front passenger side.

[26] When Mr. Martin got out of the car he was off balance and “began to turn almost like a – a pirouette coming out of the car and he rolled against the side door and came to a stop at the back quarter panel” of the car. Mr. Martin was very unsteady on his feet. His eyes were bloodshot, and his speech was slurred. He identified himself as “Letush”. This is a phonetic spelling only. The license plate number was BPVX 442.

[27] When Officer Pham arrived, Sergeant Artinian told him to arrest Mr. Martin for “care or control” of a motor vehicle. The Crown asked Sergeant Artinian, “Did you effectuate any of the arrest on the male?” He said that he did not. He went to speak to the female passenger to check on her wellbeing.

[28] Initially in examination-in-chief, Sergeant Artinian said that after Officer Pham arrested Mr. Martin, he helped him search the satchel that was across Mr. Martin’s body. This makes it sound like they both searched it, but later in his testimony he said that he (Sergeant Artinian) searched it.

[29] In any case, he found what he thought was psilocybin in a small baggie, and a “crystal-like substance as well as some marijuana”. The crystal-like substance appeared like crystal methamphetamine. He also found in satchel “The identification of the individual”. He advised Officer Pham of his discoveries.

[30] Sergeant Artinian performed an inventory search of the car. On the floor by the back seat he found a glass jar with what appeared to be psilocybin. He found a black Calvin Klein toiletry bag on the car seat in the back, which contained marijuana and a glass jar with “some form of resin”. The bag also contained syringes, growth hormones, steroids and “what also appeared to be some hash”.

[31] Officer Grosman was Officer Pham’s training officer on the day in question. They arrived on scene at 8:44AM to investigate a call concerning an impaired driver. He said that Sergeant Artinian and Officer Pham arrested Mr. Martin, which is contrary to what Sergeant Artinian said.

[32] Officer Grosman said that he went to speak to the female occupant and that Sergeant Artinian and Officer Pham dealt with Mr. Martin. While they were doing this, he “saw the arrest being initiated” and he went over to assist. He “was standing by for rights to counsel” being given by Officer Pham at 8:46AM. This contrasts with Sergeant Artinian’s evidence in that Sergeant Artinian said that he went to speak to the female occupant. Officer Grosman did not hear Officer Pham caution Mr. Martin. He did not believe that “a caution was read”.

[33] Officers Grosman and Pham searched Mr. Martin incident to the arrest. Officer Grosman said that Officer Pham conducted the search of Mr. Martin incident to his arrest. But he also said that he (Officer Grosman) removed Mr. Martin’s fanny pack and searched it.

I opened the fanny pack I did locate – there were two jars. It looked like one was a – a small glass jar that appeared to have marihuana inside of it. There was a black plastic container that had a label with the accused’s name, an expiry date, a dosage. That was empty with a small amount of residue of some kind. There were – there was a small baggie with a logo and an unknown white substance inside, another small plastic baggie with what appeared to be magic mushrooms and a small baggie with multiple colourful (inaudible) inside (Transcript, January 27, 2022, pages 59-60).

[34] Officer Grosman did not find anything that would lead him to believe that Mr. Martin might be in possession of a weapon or anything dangerous of that sort. Nor did Officer Pham tell him that he had found any such thing.

[35] As far as Mr. Martin’s demeanour, he said that he “could smell an odour (inaudible) alcoholic beverage emanating from his breath, and I also noted (inaudible) he was unsteady on his feet wobbling side to side”.

[36] Officer Pham testified that Mr. Martin was unsteady on his feet. He smelled a strong odour of alcohol coming from his breath. He was mumbling and he was difficult to understand. He was slurring his words, too. He formed grounds that he was “impaired by alcohol” and arrested him for “impaired operation”. Sergeant Artinian also told him that Mr. Martin was arrestable for this offence. This contrasts with Sergeant Artinian’s evidence that he told him to arrest Mr. Martin for “care or control”.

[37] Officer Pham took physical control of Mr. Martin at 8:44AM and arrested him. He told him that he was arresting him for “impaired operation”. But in cross-examination, he said that he arrested him for impaired care or control. The evidence shows that Officer Pham appears to be confused about the charge for which he arrested Mr. Martin.

[38] Defence counsel asked him when he read him his rights to counsel. Officer Pham said that it was at 8:46AM. He did not recall if he cautioned him.

[39] Next, with Officer Grosman’s help, he searched Mr. Martin incident to the arrest. He confirmed Officer Grosman’s evidence that they found drugs in Mr. Martin’s possession. They did not find anything that raised a concern about the safety of the officers or means of escape.

[40] At this point, Officer Pham believed that he had grounds to arrest Mr. Martin for possession of narcotics, but since he was not familiar with the drugs in the fanny pack, he was waiting for instructions on what to do. Then, while still at the scene, he received instructions from Sergeant Artinian and he thinks, the Criminal Investigation Unit, that Mr. Martin was arrestable for possession of Schedule I and III substances. But he did not tell Mr. Martin.

[41] Defence counsel asked him when he finally told Mr. Martin. Officer Pham said “I believe at – during the parade I advised the staff sergeant that he was arrested for possession of a Schedule I, Schedule III”. I note that he did not even tell Mr. Martin directly, but indirectly when he advised the staff sergeant.

[42] Officer Kim arrived on scene at the roadside and was instructed by Sergeant Artinian to take charge of the drugs, “properties”, and to look after Mr. Martin’s car. He kept custody of the drugs and stood by until Mr. Martin’s car was towed away. Then he went to 53 Division.

[43] Officer Kim catalogued the exhibits. Among them were the following drugs and their weights:

1. Hashish oil – 23.54 gms.
2. Hashish – 3.35 gms.
3. Marijuana – 45.28 gms.
4. Marijuana – “.40 4528,.28 bulk weight” (transcript, January 28, 2022, page 132).
5. Psilocybin – 18.90 gms.

[44] The Crown introduced the certificates of analyst for these substances through Officer Kim. Officer Kim took photographs of the property that they seized from Mr. Martin. They are in exhibits 12-14.

[45] Officer Grosman said that they put Mr. Martin in the police car, did initial paperwork on the in-car computer. This work had be done in order to process the arrest. They talked with Sergeant Artinian to make sure that they could leave the scene with Mr. Martin, and at 9:04AM, left the scene to take him to 41 Division to give samples of his breath.

[46] On the way to the station, at 9:16AM, they went through the Covid-19 screening form with Mr. Martin. At one point during the drive to the station, Mr. Martin fell asleep. Officer Grosman considered this to be a sign of his “impairment”.

[47] They arrived at 41 Division at 9:28AM. They were momentarily delayed in the sallyport due to an aggressive prisoner that was yelling and screaming inside the station. At 9:36AM, while they waited, Officer Pham read the breath demand to Mr. Martin.

[48] They paraded Mr. Martin at 9:45AM before Sgt. Ho. Officer Grosman said that “There was a level 3 search requested …. On the basis of the drugs that had been located on (inaudible) person.” He did not say who requested the search at this point in his evidence. Later, during cross-examination, defence counsel asked him who requested the search, but the answer is marked as (inaudible) in the transcript.

[49] He said that during the parade he told Staff Sgt. Ho “that he was arrested for possession of a Schedule I, Schedule III”. This was the first time that Mr. Martin would have heard that he was under arrest for possession of drugs. It is not clear when he arrested him for these offences.

[50] Officer Pham testified that he requested the level 3 search due to the drugs that they found in Mr. Martin’s possession and because “he was before the courts for a firearm related charge”. He discovered this when he checked CPIC in the police cruiser.

[51] Officer Grosman said that “Our concern when we locate drugs (inaudible) always that there could be more concealed on the accused person …” They worry that the person might try to conceal drugs by ingesting them. This has happened before. They request a level 3 search out of concern for the accused.

[52] In addition to this, Officer Grosman said that they had information about outstanding charges of possession of a firearm, including possession of a loaded firearm. He got this information from CPIC on the computer in the cruiser, which showed that the charges were pending. They mentioned this to Sgt. Ho in support of the level 3 search. Sgt. Ho is the one that decides whether to authorize the search or not.

[53] Officer Grosman explained that his concern regarding the firearms charges was that “there may be access to weapons and that the accused may have weapons on his person, and again (inaudible) may be hidden ….” This was another reason that justified a level 3 search of Mr. Martin. It was for Mr. Martin’s safety and for that of the officers.

[54] Regarding level 3 searches, Officer Grosman said that he does not automatically request one. In Mr. Martin’s case one was authorized “on the basis of searching for items that may cause injury”. Defence counsel asked him if he was aware that the firearms charges were dismissed on January 22, 2020. He said that it was “news to him”. [1]

[55] Officer Grosman said that on the in-car computer it is not possible to check the latest status of a charge. At the police station it is possible to check this, but access to this information is not available at the booking-in of an accused. He did not know what the process is for the updating of CPIC information.

[56] Officer Grosman said that whether he asks for a strip search depends on the circumstances. In Mr. Martin’s case, he felt that there were sufficient grounds to request one because they found what they believed were “multiple different types of drugs” in Mr. Martin’s possession. In addition they had information about outstanding firearms charges against him. But even without the information about the firearms, due to the variety of drugs in Mr. Martin’s possession he would have requested a strip search.

[57] The Crown concedes that Mr. Martin was acquitted of the firearm charges on January 20, 2020, approximately two and a half months before his arrest on April 5, 2020.

[58] The strip search commenced at 9:56AM. Officer Grosman said that he and Officer Pham conducted the search.

…. it was done in a private search room. (inaudible) not video recorded. During the search the accused was cooperative. He remained unsteady. At one point he was leaning to one side to the point that I felt he was going to fall to the ground, and I physically grabbed his arm to prevent him from falling. We removed a ring from his hand, laces from his shoes, and (inaudible) removed his sweatshirt (inaudible) drawstring that was in the sweatshirt that he didn’t want cut (transcript, January 27, 2022, page 86, lines 1-11).

[59] Mr. Martin requested something to step on because he did not want to put his bare feet on the floor. They gave him a “privacy shield” on which to put his feet.

[60] Officer Grosman described the search procedure in a general way and described what is usually done. I found the evidence unclear about exactly what he put in his notes. The Crown provided what looks like an excerpt from Officer Grosman’s notes in paragraph 47 of his submissions in reply. I do not think that this is disputed since it would be part of disclosure.

[61] It was just not clear in the evidence what exactly his notes said as opposed to what he was saying in his testimony. So I found it helpful to have a succinct account from his notes of what he recorded concerning the search itself. His notes are the following:

• on scene in search room 9:56 Begin Level 3 Search
• ml cooperative but remains unsteady at one point leaning to one side and almost falling over to the point that I reached out and grabbed him to prevent him from falling to ground
• one ring removed from hand
• one ring stuck on
• laces removed from shoes
• allowed drawstring to remain in pants (waist & ankle)
• sweatshirt placed due to drawstring 10:03 Level 3 Complete

[62] Regarding note taking of the search, Officer Pham stated that he records “if any sort of evidence, weapons, or means of escape are found” and of when the search starts and ends.

[63] Defence counsel referred him to his notes where he wrote on page 84 at 9:56AM, “Conduct Level 3 Search of male. Found no further evidence, weapons, or means of escape”. And at 10:03 he noted “Completed Level 3 Search”. That was the entirety of his notes on the search.

[64] Officer Pham testified that Mr. Martin was never fully naked at any point during the search. He was unsteady on his feet, so it took a little longer than usual for him to remove articles of his clothing.

[65] He said that they were looking for drugs, weapons, “any sort of means of escape in order to ensure his health and safety as well as fellow officers – interact with Mr. Martin”. He said that it is not automatic that someone found in possession of drugs is strip searched, but in this case just based on the drugs that they found he would have asked for a strip search.

[66] But in an apparent contradiction in cross-examination, after watching the booking-in video, he agreed that when Sgt. Ho “confirms …. that the reason that you’re asking for the [strip] search is because of the outstanding firearm charges …” he said, “yes”.

[67] He also testified that every time that someone has possession of drugs on their person when they are searched incident to arrest, he requests a level 3 search, even if they only have a small quantity of hashish. He said that any time that he finds “any sort of controlled substances that is deemed illegal I would request a Level 3 Search”. He does this to find more drugs on the person. In addition, he does it for the health and safety of the accused because they might ingest the drugs while in custody.

[68] He said that Sgt. Ho told him that he approved the stirp search “because of the suspected controlled substances as well as the outstanding firearm charges ….”. Confusingly, though he said that he did not “know his reasoning”.

[69] Sgt. Ho testified that he authorized the strip search for the “wellbeing and safety of the arrested party, and everybody” based on the information that he received from Officer Pham of being in possession of some drugs being found ….”. He authorized the strip search “to make sure there is no drugs hidden on that persons’ anywhere”. It was mainly for safety.

[70] This was the main reason, but in addition, Officer Pham told him that Mr. Martin “has history of firearm, which is in violence ….”. But he would have authorized it just on the basis of “the drugs itself”. Sgt. Ho said that Officer Pham told him that Mr. Martin “was before the court with firearm related charges”.

[71] He acknowledged that Mr. Martin told him that he did not have any firearms charges before the court. He told him that since they were recording the booking-in process the video could be used against him. He tried to caution him not to talk unless he really wanted to say something. Sgt. Ho told Mr. Martin that he was charged with impaired driving and possession of controlled substances. But in a seeming contradiction, Sgt. Ho, said that when Mr. Martin was paraded before him, he was not charged yet (transcript, January 28, 2022, bottom of page 103).

[72] He did not try to confirm what Mr. Martin told him because “that’s a, a information to assist me to make my decision about what level of search is needed. But that’s not the only reason or main reason for the whole process”. He said that the “outstanding charges are something extra for me to consider. So they are other main, other factors”.

[73] Confusingly, he said “for this particular case the drugs been found in possession of the person before being brought to the station was something I have no concern about”.

[74] Sgt. Ho did not know how often CPIC is updated. Nor did he know who updates it. In any case, he said that he does not consider outstanding charges or criminal history as relevant factors when he is booking in an accused person.

[75] Sgt. Ho always authorizes a strip search when a person is found in possession of suspected illegal drugs in order to protect the accused “and other people” that he may come into contact with while he is in custody. He may have drugs secreted somewhere on his body that had not been found yet. He would have authorized a strip search of Mr. Martin regardless of the information that he received about his outstanding firearms charges.

[76] They finished the search at 10:03AM. They did not find anything. Afterwards, they took him back to the booking area and then, at 10:06AM, they took him to room 3 in the breath office.

[77] At 10:08AM, Officer Grosman called Mr. Martin’s lawyer. He transferred the call to the phone booth where Mr. Martin spoke to his lawyer in private. Officer Pham stood by while Officer Grosman briefed the breath technician, Officer Prevost, on the background of the arrest. But Officer Pham testified that it was he who “provided grounds to Officer Prevost”, filling him in on the background to the arrest.

[78] Officer Pham testified that after the search they took Mr. Martin to the phone booth to speak to his lawyer. He did not say anything about first taking him to the booking area or to room 3.

[79] Officer Grosman said that after speaking to his lawyer, Mr. Martin entered the breath room at 10:17AM.

[80] Officer Pham said the call ended at 10:15AM and they put him back into an interview room to wait until they took him to the breath room. Officer Pham’s evidence differed regarding the time that they put Mr. Martin in the breath room. He said that he took him there at 10:25AM.

[81] Defence counsel asked Officer Grosman whether it was usual that the strip search would take place before they call an accused’s lawyer. Officer Grosman replied “Yeah, at that (inaudible)”.

[82] Officer Grosman said that since the case was in 53 Division’s jurisdiction, while Mr. Martin was in the breath room, he called the detective office at 53 Division to tell them of the arrest. Then he did some paperwork.

[83] After the breath tests were performed, Officer Prevost advised him of the results of the breath tests. Officer Grosman called 53 Division to advise them of the readings.

[84] Officer Prevost testified that the readings were 143 mg. of alcohol in 100 ml of blood at 10:29AM. The second sample at 10:52AM was 127 mg. of alcohol in 100 ml of blood. The Crown introduce the Certificate of Qualified Breath Technician through Officer Prevost. On the certificate the readings are truncated to 140 and 120.

[85] Officer Prevost noted that Mr. Martin had a very strong odour of an alcoholic beverage on his breath, his eyes were bloodshot, glassy, and watery. His skin was flushed, and his speech was slurred. He was unsteady on his feet.

[86] Officer Grosman called 53 Division concerning where to take Mr. Martin. He spoke to Officer Maloche, the officer-in-charge of 53 Division. They discussed their Covid-19 policy. Officer Grosman was instructed to take Mr. Martin to 51 Division, which is where 53 Division’s cases are taken to be held for court.

[87] For expediency, Officer Grosman and Officer Pham were to take Mr. Martin to 51 Division rather than wait for the police wagon. This was also in keeping with Covid-19 safety protocols because it would require less exposure to others.

[88] This being a Sunday, Mr. Martin would be taken to the W.A.S.H. (weekend and statutory holiday) court at Old City Hall for his bail hearing. Officer Grosman did not know when the cut off time was, but it is earlier than on Monday to Friday.

[89] Officer Grosman said that after the breath test results “were relayed to the detective I (inaudible) made aware that the accused was going to be held for a show cause hearing ….” He did not know what time he learned this, though.

[90] At 1:19PM, he called Mr. Martin’s lawyer to give her the news. At 1:22PM, she spoke to Mr. Martin again.

[91] After he spoke to his lawyer, they put him in a holding room while he and Officer Pham dealt with the drugs that they seized. At 2:00 PM, they weighed them and made exhibits to send to Health Canada for analysis. All of this was done in front of a supervisor, Sgt. Walters.

[92] At 3:13PM, the booking officer took Mr. Martin’s photograph and fingerprints. This and the processing of the drug exhibits is required prior to the bail hearing. He said that he understood that “in order for the case to be printed and pushed forward that information needs to be put in (inaudible) needs to be approved, at which the booker can (inaudible) access photographs and fingerprints for the purposes of court”.

[93] This was Officer Pham’s evidence as well. He said that it is because “I have to weigh it and send it in for exhibit for testing because the suspected drugs are suspected, so it’s not confirmed”. But he agreed that the results of the analysis would not be available that day. They finished processing the drugs at 2:37PM.

[94] Officer Grosman said that after this they took Mr. Martin to the booking-in area to be transferred out of the station. At this time Officer Pham served documents on him.

[95] At first, Officer Pham said that he put the Certificate of Qualified Technician in Mr. Martin’s property and that he could not recall if Mr. Martin signed it. The Crown refreshed his memory with the certificate, which shows Officer Pham’s and Mr. Martin’s signatures on it. Then he said that Mr. Martin signed it in front of him.

[96] Starting at 11:00AM, Officer Pham stood by waiting for instructions from Staff Sgt. Meloche regarding how to proceed. While waiting he did paperwork, and they processed the drug exhibits. He did not record anything in his notes between 11:00AM and 2:00PM.

[97] Both officers said that they put Mr. Martin in their cruiser at 3:52PM and took him to 51 Division. Officer Pham said that they arrived there at 4:11PM. They transferred custody of him at 4:59PM.

[98] At 51 Division, they paraded Mr. Martin. Officer Grosman said that “They (inaudible) custody after which time (inaudible) return to 53 Division”.

[99] Staff Sgt. Meloche said that at 2:09PM, after reviewing all the details and paperwork on the case, he made the decision that Mr. Martin would be held for a bail hearing.

[100] The Crown asked him how he could be sure of the time. He replied,

In our case press processing system called Versadex there’s a notes section. When I approve a case I make an entry into that note section and it is time and date stamped with my badge number, and so I reviewed that, that note and I was able to see that my badge number approved it at 2:09 p.m. on the 5 th of April 2020 (Transcript, January 28, 2022, page 95).

[101] Although at 2:09PM he approved the case for a bail hearing, Mr. Martin would be available for transport to the court later than that “because once I approve it the detectives phone the case down to Charge Processing and Charge Processing actually compiles the paperwork and then it prints out at the division and then the, and then the, then the person is ready to be transported” (Transcript, January 28, 2022, page 98).

[102] Concerning CPIC, Staff Sgt. Meloche said that the Toronto Police Service does not compile this record. The RCMP creates and monitors this information service. However, if the charges in issue are Toronto charges, “potentially a detective could go into the Versadex system and review them and, and see what had happened. Or if the courts are open, contact them. This would take time and it’s not generally done “each and every time we arrest somebody”. In any case, he said that the information that Mr. Martin had outstanding firearms charges was just one factor that he took into consideration when he decided to hold him for a bail hearing.

[103] For bail hearings they rely on CPIC If there were any reason to think that CPIC is not accurate, the investigators would investigate the situation “to confirm or to advise me otherwise”.

[104] Additional steps that must occur before the accused is taken to the bail court are:

1. The accused must be fingerprinted, which can occur before or after the case is approved for a bail hearing.
2. Any drugs found in possession of the accused have to be weighed because the drugs will be made exhibits and they have to know the precise amounts of the drugs. Then the drugs must be split into exhibits in bulk because there are limits of how much of the drug they can send for analysis. Any excess must be separated and submitted in bulk. He said that this process takes “some time”.

[105] Part of the procedure is that all of this is witnessed by a supervising officer and the relevant documents have to be prepared and approved. Staff Sgt. Meloche said that this is a requirement for the court process and for the rules and regulations of the police service. He also thought that the Criminal Code required it.

[106] Staff Sgt. Meloche said that the weighing and separating of the drugs “could be catalogued after, however, it’s important to know for some charges how much of a certain drug and how many different types of drugs there are so that the proper charges can be laid”.

[107] Staff Sgt. Meloche testified that although he approved the case for a bail hearing at 2:09PM, this was when he reviewed all the documents given to him to approve the case. But the decision to hold Mr. Martin for a bail hearing “had been made quite a, quite some time before that”.

[108] Officer Grosman’s understanding was that because it was Sunday and given what time it was, Mr. Martin would not be able to appear in bail court that day. Staff Sgt. Meloche said that during the week the cut off time to get an accused before the bail court is between 2:30PM to 2:45PM. On the weekend it is generally 12:30PM. He also said that this was the cut off time to get the prisoner to 51 Division (Transcript, January 28, 2022, page 111). He was not sure if they had access to remote proceedings on the day in question.

[109] Staff Sgt. Meloche did not know “what the logistics were of the day at 41 Division [where Mr. Martin was]” but he said,

I don’t know, I guess if I look at the synopsis here, that the tests occurred at, the last test occurred at 10:52 a.m. So they’re just shortly before eleven o’clock, and then from that the rest of the paperwork and transportation and printing would have to occur and that would have to occur in a time where the prisoner could still physically, you know meet the deadline of 12:30, so certainly seems pretty, it seems pretty tight to me, and being at a lock up, there may be additional, additional delays.

[110] He said that based on all the circumstances, it was doubtful that Mr. Martin could have made it to court for his bail hearing on the day in question. There was a lot of paperwork to be done after the last breath test to prepare the case for a bail hearing, to “get all the documents in place, approved, and submitted to the courts on, by the cut off”.

[111] His opinion was that “it would have been difficult for him to make court that day”. He was not sure whether on the day in question prisoners were appearing in person. He did not know whether they had developed the remote appearance process yet. He guessed that they “were probably doing video …. or telephone” but he could not recall when these procedures commenced.

[112] In Mr. Martin’s case there was the added time required to process the drugs:

…. certainly adding drugs to the mix of a, of a, of an impaired you know complicates matters and creates more responsibility on the officers, more paperwork that they have to do. Even if they’re not doing all the paperwork, they still have to you know seize the drugs, and, and, and, and you know bag the drugs and things like that to secure the evidence. So it definitely adds a component to the processing of, of the impaired charge.

[113] That was all the evidence. I will now turn to the defence’s arguments in the order in which counsel presented them in his factum.

The Charter applications

[114] At trial, the defence brought a Charter application that alleges breaches of Mr. Martin’s rights under ss. 8 and 9 and seeks remedies under ss. 24 (1) and (2). On consent, the Charter applications and the trial proceeded in a blended fashion.

[115] After both parties closed their cases, counsel agreed to make their submissions on the trial and on the Charter issues in writing.

[116] In his written submissions, defence counsel added ss. 10 (a) and (b) to his Charter challenges. This was without notice to the court or to the Crown.

Should the court entertain the defence’s late Charter application?

[117] The Crown submitted a reply to the additional two grounds, but I am uncertain whether the Crown asks the court to dismiss summarily the additional Charter grounds, or to consider them despite the defence pleading them for the first time during his final written submissions.

[118] In order to answer this question, I considered the Crown’s submissions in reply to the defence’s late Charter application, the Criminal Rules of the Ontario Court of Justice, and the jurisprudence cited below.

[119] Subrule 2 of the Rules states:

2.1 (1) An application shall be commenced by serving an application in Form 1 on the opposing parties and any other affected parties and filing it with proof of service. (2) The application in Form 1 shall include (a) a concise statement of the subject of the application; (b) a statement of the grounds to be argued; and (c) a detailed statement of the factual basis for the application, specific to the individual proceeding.

[120] Mr. Linds, the Crown, cited jurisprudence that states that a late Charter application can be summarily dismissed, and that defence counsel cannot “sit back” and hope that Charter issues will arise in the evidence, and that these alleged Charter breaches must be asserted “at the earliest possible point in the trial” (R. v. Kutynec, [1992] OJ No 347 (CA) at para 16). One could infer from this that the Crown is asking the court to dismiss summarily the new Charter applications.

[121] On the other hand, the Crown cited R. v. Jabourou Abdoulkader, 2019 ONSC 202, which states that the trial judge has a discretion to hear a late Charter application (subparagraphs 10.6 and 10.7). Kutynec also indicates that the trial judge has this discretion (paras. 20, 28, 38)

[122] Additionally, the Crown did not plead that it was prejudiced by the late application. Abdoulkader addressed the importance of this factor (subparagraph 10.7):

Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application.

[123] Furthermore, in the Crown’s written submissions on the merits of the late Charter applications, he did not ask me to dismiss them summarily.

[124] One might infer from these circumstances that Mr. Linds, who is a very experienced Crown, and is always very fair to the defence and to the court, felt comfortable digesting the new Charter grounds and in responding to them based on the record before the court.

[125] I acknowledge that another reasonable interpretation of these circumstances could be that Mr. Linds implied that he objected to the court entertaining the new Charter applications but provided written submissions concerning them just as a precaution in case I decided to consider them. However, it is not clear which interpretation is the correct one.

[126] In Kutynec, after the Crown’s case was in, defence counsel told the court that he had a Charter application to make and asked for a voir dire to call one of the officers and other evidence in support of the application. The defence maintained that the police arbitrarily detained Mr. Kutynec.

[127] The trial judge refused to hear the application holding that there was no evidence that the police detained Mr. Kutynec. He found Mr. Kutynec guilty and sentenced him to 30 days to be served intermittently. Mr. Kutynec appealed to the District Court, but Borins J. denied the appeal. Next, he appealed to the Court of Appeal.

[128] At the Court of Appeal, defence counsel conceded that he had disclosure of the Crown’s case before trial and intended from the outset to bring a Charter application. He “deliberately deferred his motion until the close of the Crown’s case” (para. 7).

[129] The court stated in paragraph 19 that “Failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert a Charter remedy”.

[130] The Court of Appeal dismissed the defence’s appeal because they found that there was no evidence at trial that the police detained Mr. Kutynec (para. 11, 24). In paragraph 24 Finlayson J.A. writing for the court stated,

I agree with Borins Dist. Ct. J. that the trial judge was correct in concluding that nothing adduced in evidence before him suggested that the appellant was detained when he was first approached by the police. Furthermore, counsel did not indicate that he proposed to call evidence which would provide some basis for a finding that the appellant's Charter rights had been violated. Counsel simply asserted that he was entitled to a voir dire to explore the issue.

[131] The court agreed that trial judges have a discretion to exercise concerning challenges to “evidence already received and will do so where the interests of justice so warrant” (para. 20). But they added in paragraph 25 that “Absent any basis on which it could be argued that the appellant was detained, the trial judge was well within his authority in declining to exercise his discretion to re-open the question of the admissibility of the evidence tendered by the Crown”.

[132] And further in paragraph 16 the court held,

It is obvious that counsel for the accused is not entitled to sit back, as he did in this instance, and hope that something will emerge from the Crown's case to create a Charter argument or assist him in one he is already prepared to make. The onus is on the accused to demonstrate on a balance of probabilities that he is entitled to a Charter remedy and he must assert that entitlement at the earliest possible point in the trial. Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case.

[133] In his written submissions, defence counsel stated that over the course of the trial Charter breaches under ss. 8, 9, 10 (a), (b) “came to light” (para. 3). However, defence counsel knew of circumstances that he felt gave rise to breaches under ss. 8, 9 before the trial commenced because he brought his Charter application under these sections prior to trial. Therefore, grouping them in with the new alleged Charter breaches under ss. 10 (a), (b) is confusing.

[134] If the circumstances concerning ss. 10 (a) and (b) came up unexpectedly during the trial that is another case. That would be a factor that militates in favour of hearing the late Charter application. But he did not say that in his submissions, so I do not know when he became aware of the s. 10 (a) and (b) circumstances that he raises.

[135] The judicial pre-trial notes dated, July 2 and November 29, 2021, state that the defence will bring an application under s. 10 (b) of the Charter. One might take the position that this constitutes a form of notice to the Crown and the Court of an impending s. 10 (b) Charter application. But the defence’s notice of application, dated December 29, 2021, refers to “SS. 8, 9, 24(1), and 24(2) of the Charter”. It does not mention s. 10 (b). Does this mean that the defence abandoned its intention to bring a Charter motion under s. 10 (b)? It is confusing.

[136] Considering that defence counsel did not explain why he was bringing a late Charter application, I would be well within the bounds of the appropriate exercise of my discretion to disallow the application. However, two factors convince me to exercise my discretion in favour of accepting the late applications.

[137] The first factor is that although the Crown expressed disapproval that the defence brought the application at the 11 th hour, the Crown did not explicitly object to the court entertaining the application. The Crown did not argue that it was prejudiced in any way by the late application. In fact, the Crown, who is very experienced and very fair, went ahead and made written submissions regarding the late-pleaded alleged Charter breaches under ss. 10 (a) and (b) so that if the court allowed the application, it would have the Crown’s position. Therefore, it appears that the Crown was able to digest the new Charter application and respond to it sufficiently.

[138] The second factor is that in the circumstances of this case I do not think that it is fair to take away a possible Charter defence from Mr. Martin because his counsel filed the application late and without notice.

[139] But in fairness to defence counsel, I do not think that he was sitting back hoping that another Charter motion would pop up unexpectedly from the evidence.

[140] In absence of an explanation from defence counsel regarding why he brought the application late, I cannot say why he did that. But I do not think that he was behaving inappropriately. I will characterize it as just one of the vagaries that occur in the frequently uncertain process of criminal trials.

[141] In Abdoulkader, the court stated that “A trial judge should generally be reluctant to foreclose inquiry into an alleged Charter violation” and search for other solutions (subparagraph 10.8).

[142] In the case at bar, solutions other than the Crown responding to the late Charter applications do not play an important part because none were requested and as stated, the Crown appears to have been able to deal with the lateness and lack of notice of the new Charter application and make a strong reply.

[143] Therefore, for these reasons I will exercise my discretion in favour of the defence and entertain the late Charter application under ss. 10 (a) and (b).

S. 8 of the Charter

[144] Defence counsel cited R. v. Golden 2001 SCC 83, in support of his argument that the police breached Mr. Martin’s rights under s. 8 by conducting a strip search of him at the police station.

[145] In Golden, the court held that “Because strip searches are of such an invasive character, they must be considered prima facie unreasonable”. Where the reasonableness of a strip search is challenged, the Crown bears the onus of proving its legality (para. 105).

[146] Concerning strip searches at the police station, the Crown “must convince the court on a balance of probabilities” that reasonable grounds existed to carry out the search and that it was done in a reasonable manner (para. 105).

[147] Although Golden lays down much guidance on the appropriateness of strip searches, the facts in Golden differ dramatically from the facts in the case at bar.

[148] In Golden the accused was strip searched in a Subway sandwich shop after being arrested for drug offences. In paragraph 30 the court provided the following description of what happened:

Following the arrests, Constable Ryan conducted a "pat down" search of the appellant and looked in his pockets. He did not find any weapons or narcotics. This officer then decided to conduct a visual inspection of the appellant's underwear and buttocks. Constable Ryan obtained from the shop's employee the key to a door leading to the basement where public washrooms were located. On the landing at the top of the stairwell, Constable Ryan [page 700] undid Mr. Golden's pants and pulled back the appellant's pants and long underwear. Looking inside the appellant's underwear, he saw a clear plastic wrap protruding from between the appellant's buttocks, as well as a white substance within the wrap. Constable Ryan testified that when he tried to retrieve the plastic wrap, the appellant "hip-checked" and scratched him, so that he lost his balance and almost fell down the flight of 14 stairs. Constable Ryan subsequently pushed the appellant into the stairwell, face-first.

[149] Then the officers moved the search from the landing to a seating booth in the back of the Subway shop. They asked the customers to leave and locked the door. But two persons under arrest, five officers, and an employee stayed in the shop.

[150] The court described what happened next,

The officers forced the appellant to bend over a table. At this point, the appellant's pants were lowered to his knees and his underwear was pulled down. His buttocks and genitalia thus were completely exposed. According to the evidence, the partitions between the booths in the shop were high enough to block the view from the outside of the part of the shop where the search was conducted. The employee of the shop testified that passersby would not have been able to see what was taking place inside, but someone, "[i]f ... look[ing] carefully by the side of the window", would have been able to see the appellant's leg (para. 32).

[151] In paragraph 48, the court found that the police subjected the accused to three separate strip searches: two at the Subway shop and one at the police station.

[152] The reasonableness of the search is governed by the need to preserve the evidence and to prevent its disposal by the arrestee” (Golden, para. 93).

[153] Concerning weapons, Golden held in paragraph 94 that,

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 [page 731] 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. (Emphasis added)

[154] Strip searches must not be done as a matter of routine. Golden stated that,

Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter. …. a "routine" strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest. (Emphasis added)

[155] Regarding the search of persons who are being introduced to a custodial setting, Golden stated that,

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.

[156] Golden stated that “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” (para 98).

[157] In paragraph 99 the court summarized its holdings:

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.

[158] Keeping an adequate record of the execution of the strip search is an important factor to consider for it to be a reasonable search (Golden para. 101.11).

[159] I find that in the case at bar the officer’s fell down on the job when it came to taking notes of the strip search. Officer Grosman’s notes were scant and lacked detail. Except for noting that he grabbed Mr. Martin to prevent him from falling to the ground, there is no indication of which officer did what. Even in his testimony shown above, his description of the search was inconclusive concerning what each officer did. He said, “We removed a ring from his hand, laces from his shoes, and (inaudible) removed his sweatshirt (inaudible) drawstring ….”

[160] Officer Pham’s notes were extremely brief and did not describe the search, just the results of it.

[161] I find as a fact that the officers did not keep proper notes of the strip search. This militates in favour of the defence’s argument that the police breached Mr. Martin’s rights under s. 8.

[162] In R. v. Im, 2016 ONCJ 383, Justice McArthur found a breach of s. 8 where the officers did not record the details of a strip search. The court found that “The breach of Mr. Im's constitutional right was rendered more serious by the failure of the officers to keep a proper record of the search. (See R. v. Golden, supra, at para. 101 (11)); R. v. Bookal, 2016 ONSC 2941 at para. 28)”.

[163] Regarding the authorization of the search, Sgt. Ho authorized it. The evidence showed that it was his decision, not Officer Grosman or Officer Pham’s. They just requested it. Therefore, I will focus on Sgt. Ho’s actions. Sgt. Ho said that he authorized the search for,

…. the wellbeing and safety of the arrested party, and everybody. So the information from the officer of being in possession of some drugs being found I authorized a more complete search to make sure there is no drugs hidden on that person’s [sic] anywhere. It was mainly for the safety (Transcript, January 28, 2022, page 59).

[164] He took the information about the firearms charges into consideration, but even without that he would have authorized the strip search, so it was not a deciding factor.

[165] Sgt. Ho said that he always authorizes a strip search when a person is found in possession of illegal drugs. He does this to protect the accused and other persons with whom he may come into contact while in custody.

[166] This sounds like an unwritten policy to order that all persons who are charged with drug offences be strip searched. Officer Ho did not qualify his practice by saying, for example, that he ordered strip searches only when the person was not going to be a “short-term detainee”. This makes me think that the length of the person’s likely detention in police custody is immaterial to him in making his decision.

[167] I find that this militates in favour of the defence’s argument that the police breached Mr. Martin’s rights under s. 8.

[168] Golden held in paragraph 97 that the difference between short-term detentions and longer-term detentions is important. The court stated although “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” (agreeing with Duncan J. in R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27).

[169] Golden stated further that, “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”.

[170] The Crown cited R. v. Gerson-Foster, 2019 ONCA 405, paras. 108-110, for the proposition that strip searches in a custodial context are justified because there is a greater need to ensure that persons who enter the prison population do not have weapons or drugs. This risk is present regardless of the reason for the person’s arrest.

[171] The court stated that “Custodial searches are conducted …. because of the ‘greater need’ to ensure that individuals entering the prison population do not possess concealed weapons or illegal drugs ….” (Para. 109).

[172] The police arrested Mr. Gerson-Foster on the strength of what they thought was an outstanding surety warrant. In reality, a month earlier the court had deemed the warrant executed when Mr. Gerson-Foster appeared in court to deal with it. Incident to the arrest they searched him and found five grams of marijuana and $3, 495.00 on his person.

[173] Mr. Gerson-Foster complained that the court had dealt with the warrant. However, the arresting officers checked and confirmed that the warrant was still on CPIC. They told Mr. Gerson-Foster that they would check into it when the arrived at the police station.

[174] When they got to the station the officers escorted him to the booking desk by 1:38 pm. Mr. Gerson-Foster complained again that the court had dealt with the warrant and that it was no longer outstanding. The booking-in Sergeant told him that the detectives would “look into it thoroughly”. Then, at 1:50pm, he authorized a strip search before anyone looked into the status of the warrant.

[175] There does not appear to be anything in the facts concerning what the police intended to do about Mr. Gerson-Foster’s continued detention when the strip search was ordered. However, one of the officers said that had they known before they strip searched him that the warrant was no longer outstanding, they would have released him unconditionally.

[176] Concerning the strip search, the court held that the officers should not have conducted it “until it was assured that Mr. Gerson-Foster would be mingling with other prisoners” (para. 104).

[177] The Crown cited Golden (paras. 96-97) for the proposition that when an accused person is going to be placed in “the general prison population, there is greater need to ensure that the person is not concealing contraband or weapons” (Para. 6, Crown written submissions).

[178] In Golden, the court said that they acknowledged 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 …” but this allowance does not extend to “routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells” (Para. 96).

The case at bar

[179] I consider Sgt. Ho’s actions as the key evidence in deciding whether the strip search of Mr. Martin breached his rights under s. 8 of the Charter. The reason for this is that he is the one that authorized it. It can easily be inferred from Officer Ho’s evidence that the request by the arresting officers was not a deciding factor in his decision. As I explain below, his evidence appears to indicate that he would have authorized it regardless of being asked to do so. The fact that the arresting officers requested that he authorize it did not sway him one way or another.

[180] The Crown agrees that Officers Pham, Grosman and Ho, testified that when Sgt. Ho authorized the strip search of Mr. Martin, “no determination had been made …. “with respect to whether Jason Martin would be held for bail or his detention sought at a show cause hearing” (Para. 7, Crown written submissions).

[181] This means that without knowing if Mr. Martin was going to enter the prison population, Sgt. Ho authorized a strip search. He testified that he always authorizes a strip search when a person is charged with possession of illegal drugs. Therefore, he ordered that Mr. Martin be strip searched based on the fact that he was arrested for drug offences and for the wellbeing of Mr. Martin “and everybody”.

[182] Although the fact that the arresting officers told him that Mr. Martin had outstanding firearm charges was a consideration, he would have authorized the strip search solely because Mr. Martin was arrested for drug offences.

[183] In cross-examination, this exchange took place:

Q. Right. Okay. But it sounds like it’s not really a case by case situation if the person is arrested for a drug offence and drugs are found on their person, right, then it’s sort of automatic that a stripsearch is authorized? A. If someone is booked, I think for drug related charges and just already found on their person, yes I will authorize a Level 3 Search. (Transcript, January 28, 2022, page 81)

[184] Sgt. Ho’s evidence is pretty clear that he routinely authorizes strip searches simply based on the fact that a person is charged with possession of illegal drugs. This is based on concern for the accused’s and other’s safety. He did not mention any other factors that he takes into consideration in making this decision. I infer from that that he does not consider any other circumstances in coming to the decision to order that a person that is charged with possession of illegal drugs be strip searched.

[185] This means that he does not consider how long or where the arrested person will be in custody and whether he will be mingling with a larger prison population. It is clear that he did not consider this in Mr. Martin’s case.

[186] Therefore, it appears that if a person were charged with drinking and driving and possession of a small amount of an illegal drug, he would, without considering any other factors, order that the person be strip searched because this is what he routinely does.

The recording of the strip search

[187] Regarding the recording of the strip search, the entirety of Officer Pham’s notes of the search was: “9:56AM “Conduct Level 3 Search of male. Found no further evidence, weapons, or means of escape”. And at 10:03 he noted “Completed Level 3 Search”.

[188] Officer Grosman made perfunctory, scant notes.

[189] In fact, Officer Grosman testified that he could not recall what roles he and Officer Pham played during the search. On page 107 of the transcript of January 27, 2022, the following exchange occurred between defence counsel and Officer Grosman:

Q. Okay. And in terms of the manner in which the search was completed were - sort of – one of you handling one thing and what were – what were the roles here between yourself and Officer Pham? A. I – I don’t specifically recall except to say that both officers usually are participating.

[190] Had he made notes, he could have remembered this very basic information. But Officer Grosman testified that he did not have a specific recollection of “the details in which Mr. Martin was searched”. He could only explain what is “typically done” (Transcript, January 27, 2022, page 107).

[191] Officer Grosman said that he records when the search begins and ends and whether they find anything. He said, “I don’t make note of (inaudible) specific process unless there’s something (inaudible) out of the ordinary” (Transcript, January 27, 2022, page 107). So, his practice is not to record the specifics of the strip searches that he conducts.

[192] Concerning the notes that he took, he agreed that they “don’t actually set out any – any details about whether the clothing’s removed or the search; they just speak to what’s removed from his person and the discoveries, ….” (Transcript, January 27, 2022, page 107)

[193] The Crown argued that “If they fell short of their responsibility to take notes of the manner of search …. It was not a flagrant breach nor was it without due care and attention to the rights of the person in their custody”.

[194] I disagree. The lack of proper notes by both officers concerning how they executed the search is a flagrant breach of Mr. Martin’s rights under s. 8 of the Charter. It flies in the face of the dictates of Golden (para. 101 .11) and of all judicial pronouncements on the necessity to make a proper record of strip searches.

[195] Accurate notes are important to ensure the protection of the person searched and to provide for a meaningful review of the police’s actions by informing defence counsel of the circumstances of the search so he or she can decide whether to object to the way the police conducted the search. This is an integral part of making full answer and defence.

Disposition of the s. 8 Charter challenge

[196] After considering all the evidence, the circumstances, the law, and counsels’ submissions, I find that the police breached Mr. Martin’s rights under s. 8 of the Charter and I grant the defence application.

[197] I find that Sgt. Ho breached Mr. Martin’s rights under s. 8 of the Charter by ordering that he be strip searched pursuant to his long-standing routine practice of authorizing strip searches of all persons who are charged with drug offences. He does not seem to consider any other factors in a meaningful way if the person is charged with a drug offence. I cannot agree with the Crown that Mr. Martin was not subjected to strip search as a matter of routine. However, I agree with the Crown’s assessment that such a search, if found, is a flagrant breach of Mr. Martin’s rights under s. 8 of the Charter (Para. 15, Crown’s written submissions).

[198] Furthermore, although I find that the mere asking of Sgt. Ho for a strip search, does not breach Mr. Martin’s s. 8 rights because they are just asking, their subsequent strip search of Mr. Martin pursuant to Sgt. Ho’s routine policy to order them in all drug cases breached Mr. Martin’s rights under s. 8 because it formed part and parcel of the execution of Sgt. Ho’s policy. Counsel did not ask Sgt. Ho whether he would have ordered a strip search had officers Grosman and Pham not asked for one, but I think that it is a reasonable inference from Sgt. Ho’s evidence that he would have because it is what he does in all drug cases.

[199] A further factor that I consider in deciding that the police breached Mr. Martin’s rights under s. 8 of the Charter is that neither searching officer took adequate notes of the search itself.

S. 9 of the Charter

[200] The defence argues that the police breached Mr. Martin’s rights under s. 9 of the Charter because they did not bring him before the court within the required time for bail.

[201] The Criminal Code directs that.

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law: (a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and (b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

[202] Officer Pham arrested Mr. Martin at approximately 8:44AM. He read him his rights to counsel at 8:46AM. Then the police searched Mr. Martin and his car. They found several drugs in his possession.

[203] They put Mr. Martin in the police cruiser and did required paperwork on the in-car computer. This work had to be done to process the arrest. They left the scene at 9:04AM and went to 41 Division, the nearest police station that had an Intoxilyser technician. On the way to the station they went through the required Covid-19 screening protocol with Mr. Martin.

[204] They arrived at the station at 9:28 AM. They were momentarily delayed in the sallyport due to an unruly prisoner inside the station. While they waited, Officer Pham read the breath demand to Mr. Martin.

[205] They paraded Mr. Martin at 9:45AM. They strip searched Mr. Martin between 9:56AM and 10:03AM. Afterwards, they took him back to the booking area and then to the breath room area. Officer Grosman called Mr. Martin’s lawyer at 10:08AM.

[206] Mr. Martin finished talking to his lawyer at 10:15 AM. He entered the breath room at 10:17AM according to Officer Grosman and at 10:25AM according to Officer Pham. Mr. Martin finished his second breath test at 10:52AM.

[207] Officer Grosman called 53 Division to tell Staff Sgt. Meloche what the breath readings were and to determine where to take Mr. Martin. He received instructions to take him to 51 Division. For expedience, they decided that the arresting officers would take him rather than wait for a wagon to take him.

[208] Officer Grosman did not remember when he was told that Mr. Martin would have to go to bail court. But at 1:19PM he called Mr. Martin’s lawyer to tell her that they decided to keep Mr. Martin in custody for a bail hearing. He spoke to Mr. Martin’s lawyer at 1:22PM. Afterwards, they put him in a holding room while they processed the drug exhibits. This started at 2:00PM. I note that this was already past the cut off time for appearing in bail court on that day. Because it was Sunday the cut off time was 12:30PM.

[209] They finished processing the drugs at 2:37PM. At 3:13PM an officer took Mr. Martin’s photograph and fingerprints.

[210] At 3:52PM, Officers Grosman and Pham took Mr. Martin to 51 Division and arrived there at 4:11PM. They transferred custody of him at 4:59PM.

[211] Staff Sgt. Meloche said that he made the decision to send Mr. Martin to bail court at 2:09PM. I note that this is after the cut off time for the bail court on a Sunday. In any case, he testified that due to the nature of Mr. Martin’s case it was doubtful that they would have been able to process him and get him to court that day.

[212] Mr. Martin was brought to bail court the next day, April 6, 2020.

[213] This was in the early days of the pandemic. Remote appearances in bail court were just being developed. Staff Sgt. Meloche was not sure if they were available on the day in question. In any case, the cut off time is still the same.

[214] After considering all the circumstances, I am not persuaded on a balance of probabilities that the police breached Mr. Martin’s rights under s. 9 of the Charter. I find that they acted reasonably and without undue delay in processing him. He finished his second breath test at 10:52AM. He could not just get up and go to court from there.

[215] I find that in the circumstances of this case it is unreasonable to expect the police to rush through the preparation of the file and take him to court all in the approximate hour and a half that was left before the cut off time.

[216] Mr. Martin was facing ten charges. The police had to follow the required procedures to continue processing him. This entailed organizing the file with all the relevant information concerning Mr. Martin’s arrest, including all the charges that he faced. Officer Prevost had to prepare his analyst certificate, and they had to serve the documents on Mr. Martin.

[217] These things take time. If he shows up in bail court without the relevant information required to understand his case, the court will just adjourn it to another day when the Crown will have the information for the court to be able to make a decision concerning his release.

[218] After considering all the circumstances, the evidence, the law, and counsels’ submissions, I find that the police acted reasonably and with dispatch to process Mr. Martin’s case. There is no evidence of their wasting time, unnecessarily delaying, or doing things that were not useful to prepare the case for court. Mr. Martin had numerous charges; therefore, it is not unreasonable that it took the police the time that it took them to organize all the charges and the evidence that supported them. During this time, they also called Mr. Martin’s lawyer two times and he spoke to his lawyer on both occasions.

Disposition of the s. 9 Charter challenge

[219] For the reasons given above, I dismiss the defence application under s. 9 of the Charter.

Sections 10(a) and 10(b)

[220] Section 10 of the Charter states that,

Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right;

[221] The evidence shows that the problems with Mr. Martin’s rights to counsel started right off the bat at the time of the arrest. In examination-in-chief Officer Pham said that he arrested Mr. Martin for “impaired operation”. In cross-examination, he said that he arrested him for impaired care or control. This is problematic because Mr. Martin had the right under s. 10 (a) to be told why he was being arrested. It is not clear from Officer Pham’s evidence for which charge he told Mr. Martin that he was arresting him.

[222] Officer Pham read Mr. Martin his rights to counsel but he could not remember if he cautioned him about his right to remain silent. Officer Grosman was standing by when Officer Pham arrested Mr. Martin. He said that he did not hear Officer Pham caution Mr. Martin, nor did he believe that “a caution was read”. Despite being his training officer, Officer Grosman testified that he did not remind Officer Pham to give Mr. Martin the caution in addition to his rights to counsel.

[223] Based on this evidence, I find as a fact that Officer Pham did not caution Mr. Martin.

[224] The Crown argued that this was inadvertent because Officer Pham was just in his second month as a police officer. Further, his training officer, Officer Grosman, did not catch the omission.

[225] I do not agree that Officer Grosman did not catch the omission. He testified that he was standing by when Officer Pham arrested Mr. Martin and he did not hear him administer the caution, nor did he believe that “a caution was read”. In these circumstances, Officer Grosman should have done something or said something to Officer Pham, whom he was training how to be a good police officer.

[226] In R. v. Simpson, 2020 ONSC 7862, para. 73, the court found that by not “immediately provid[ing] Mr. Simpson or his wife with the formal caution and notification of rights to counsel, [they] thereby failed to comply with their s. 10 Charter obligations”.

[227] Regarding advising Mr. Martin of being charged with the drug offences, Officer Pham testified that after they found the drugs, he believed that he had grounds to arrest Mr. Martin for possession of narcotics, but since he was not familiar with the drugs in the fanny pack, he was waiting for instructions on what to do. Then, while still at the scene he received instructions from Sergeant Artinian and he thinks, the Criminal Investigation Unit, that Mr. Martin was arrestable for possession of Schedule I and III substances. But he did not tell Mr. Martin.

[228] Mr. Martin did not learn that the police charged him with the drug offences until he was being paraded and Officer Pham told Sgt. Ho that he was arrested for possession of “a Schedule I, Schedule III”. This was at 9:28AM. I note that he did not even tell him directly, but indirectly when he advised the staff sergeant.

[229] They left the scene with Mr. Martin at 9:04AM. They paraded him at 9:45AM. That was 41 minutes that Mr. Martin was arrested for the drug offences but did not know it.

[230] In R v Nguyen, 2008 ONCA 49, the court dealt with “the effect of failing to comply with the informational requirement of s. 10(a) of the Charter” (Para. 11).

[231] The court considered s. 10 (a) of the Charter and stated in paragraph 17 that,

…. a person is not obliged to submit to an arrest if he does not know the reason for it: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8. It is, accordingly, essential that he be informed promptly or immediately of the reasons.

[232] In paragraph 20, the court held,

while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: (Emphasis added)

[233] I find that by not informing Mr. Martin of the complete reason for his arrest, the police breached his rights under s. 10 (a) of the Charter.

[234] In addition, I find that the way in which Officer Pham informed Mr. Martin of what he was charged with was imprecise, confusing, and not in keeping with the spirit of s. 10 (a). Officer Pham’s evidence was that he finally told Mr. Martin the full extent of the charges that he faced while he was parading him before Sgt. Ho. And he did not even tell him directly. He informed him indirectly by telling Sgt. Ho that he was arrested “for possession of a Schedule I, Schedule III”.

[235] Therefore, not only was the process by which Officer Pham purported to inform Mr. Martin of the added drug charges deficient, but the actual words by which he purported to inform him were cryptic and vague.

[236] The booking-in process is a stressful procedure for an accused person. There are a lot of things occurring. They are in an unfamiliar environment. Moreover, Mr. Martin had been drinking. I find that in the circumstances of this case, the way that Officer Pham “informed” Mr. Martin of the fact that he was also charged with drug offences was completely inadequate. He should have taken more care to make sure that Mr. Martin understood that he was being arrested on additional charges, and what they were, so that when he spoke to his lawyer later, he would be able to explain the full extent of his jeopardy and receive the corresponding appropriate legal advice.

[237] The Crown argued that Mr. Martin “would surely have been aware that drugs were seized off his person in his pants and in the fanny pack he was wearing” (Para. 3, Crown’s reply submissions).

[238] Given that s. 10 (a) works in tandem with s. 10 (b), in order to effectively provide rights to counsel under s. 10 (b), the police must communicate to the accused in a clear manner for what offences he or she is arrested. It is only in this way that the accused can then go on to fully exercise his or her rights under s. 10 (b).

[239] In addition, considering that “The purpose of s. 10(b) …. is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it” I find that in the circumstances of this case, the breach of s. 10 (a) resulted in a breach of s. 10 (b).

[240] The Crown argued that if any breaches of ss. 10 (a) or (b) occurred, they were inadvertent. The Oxford Languages online dictionary defines inadvertent as “not resulting from or achieved though deliberate planning”. I do not think that the police deliberately breached Mr. Martin’s rights under these sections, rather they did so by their inattentiveness and the careless, lackadaisical manner in which they treated Mr. Martin’s rights under the sections.

Disposition of the s. 10 (a) and (b) Charter challenges

[241] For the reasons given above, I find that the police breached Mr. Martin’s rights under ss. 10 (a) and (b).

Stay of proceedings

[242] The defence asks for a stay of proceedings as a remedy for the breaches of Mr. Martin’s Charter rights. I do not agree that a stay is the appropriate remedy.

[243] The defence cited R. v. Babos, 2014 SCC 16, in which the court held that “A stay of proceedings is the most drastic remedy a criminal court can order ….” (Para. 30).

[244] However, the court stated that “there are rare occasions – ‘clearest of cases’ – when a stay of proceedings for an abuse of process will be warranted ….” (Para. 31).

[245] In paragraphs 30-32, the court held,

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).

[246] The defence pointed out that R. v. Singh, 2013 ONCA 750, para. 37 held that,

To be sure, the granting of a stay of proceedings as a remedy under s. 24(1) of the Charter often turns on trial fairness issues. But the remedy is not limited to cases where those kinds of issues are implicated. In the seminal case of R. v. O'Connor, [1995] 4 S.C.R. 411, the Supreme Court of Canada recognized that there is a residual category of cases that do not impinge on trial fairness - albeit relatively narrow in application - where a stay may be appropriate…

[247] Although the breaches of Mr. Martin’s Charter rights are concerning, after considering the jurisprudence cited above and the circumstances of this case, I do not find that it is one of the “rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted”.

Disposition of the defence application for a stay of proceedings

[248] For the reasons given above, I dismiss the defence’s application for a stay of proceedings.

S. 24 (2)

Would the administration of justice be brought into disrepute if the evidence against Mr. Martin were admitted?

[249] Section 24 (2) of the Charter states:

Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[250] In R v Le, 2019 SCC 34, the Supreme Court of Canada held that in deciding whether evidence should be excluded under s. 24 (2), the court should ask:

…. whether the administration of justice would be brought into disrepute by its admission (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 42). If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the “integrity of, and public confidence in, the justice system” (Grant, at paras. 68-70).

Was the evidence against Mr. Martin “obtained in a manner” that infringed or denied any of his Charterer rights?

[251] Defence counsel asks that all the evidence against Mr. Martin be excluded because of the breaches of his Charter rights. He relies on R. v. Pino, 2016 ONCA 389 at paragraphs 73-78.

[252] In Pino, the police seized 50 marijuana plants from the trunk of Ms. Pino’s car during a search incident to her arrest. The trial judge concluded that the police breached Ms. Pino’s rights under s. 8, and two breaches of s. 10 (b). The police held her “incommunicado in a jail cell for nearly five and a half hours after her arrest”.

[253] Regarding the two breaches under s. 10 (b), the trial judge concluded that the evidence was not “obtained in a manner” that infringed Ms. Pino’s rights because the breaches occurred after they found the marijuana.

[254] The Court of Appeal pointed out in paragraph 48 that the Supreme Court of Canada has taken a “generous and increasingly broad approach to the "obtained in a manner" requirement [that] allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered”.

[255] In paragraph 49, the court found that “all three Charter breaches found by the trial judge satisfied the "obtained in a manner" requirement in s. 24(2). They were 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.

[256] The court remarked that “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” (Para. 50).

[257] Further, the Court of Appeal emphasised that,

…. in Strachan itself, Dickson C.J.C. held that "obtained in a manner" did not require a causal connection between the Charter breach and the evidence. A temporal connection would be enough, so long as it was not too remote and so long as the breach and the discovery of the evidence occur [at para. 46] "in the course of a single transaction". The chief justice emphasized that the court should look at the "entire chain of events". And there should be no bright line rule; "these situations should be dealt with on a case by case basis".

[258] The court cited R. v. Plaha, [2004] O.J. No. 3484, para. 45, pointing out that, “Doherty J.A. added "contextual" to the list of connections that could satisfy the "obtained in a manner" requirement, and he succinctly summarized the Supreme Court's approach:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that [page 573] infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous. (Citations omitted)

[259] Pino observed that in “R. v. Wittwer, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 2008 SCC 33, at para. 21, Fish J., for a unanimous court, adopted Doherty J.A.'s formulation in Plaha, and stressed that the court's approach to the "obtained in a manner" requirement should be both "purposive" and "generous":

[260] The "obtained in a manner" requirement … is just the gateway to the focus of s. 24(2) -- whether the admission of the evidence would bring the administration of justice into disrepute” (Pino, para. 56).

[261] In paragraphs 73-78, Pino interpreted the phrase “obtained in a manner” and found that “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”.

[262] The court found that there was a “temporal and contextual” connection between the arrest of Ms. Pino and the breaches of her Charter rights. The connection was “neither too tenuous or remote”. The temporal connection was that “the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino's arrest”. The contextual connection was satisfied because “the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it” (Para. 74).

[263] In the case at bar, the Crown argued that the evidence against Mr. Martin was not “obtained in a manner that infringed or denied” his Charter rights.

[264] Based on the jurisprudence cited above and the facts of this case I do not agree with the Crown’s submission. I find that the breaches of Mr. Martin’s Charter rights “are all "temporally" and "contextually" connected to the evidence sought to be excluded. They all occurred in the course of the same "transaction": Mr. Martin’s arrest and immediate processing at the police station.

[265] There does not have to be a causal connection. The temporal connection between Mr. Martin’s arrest, processing him, the breaches, and the gathering of evidence is not “too remote”. I find that it was one continuous stream of events. All these events shared the same temporal and contextual reality.

[266] As indicated above, “the court's approach to the "obtained in a manner" requirement should be both "purposive" and "generous".

[267] In R. v. Grant, 2009 SCC 32 at para 71, the court held that in deciding whether to exclude or include evidence under s. 24 (2) of the Charter, the court must:

…. assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[268] I will now consider these factors.

The seriousness of the Charter-infringing state conduct

[269] In paragraph 21 of Nguyen the court stated that,

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[270] I find that the officers in Mr. Martin’s case could have easily been more diligent and communicative in advising him of what charges he faced. I grant that Officer Pham was a new police officer and was being trained by Officer Grosman, but he was careless concerning the offence on which he arrested Mr. Martin. This is a simple and very basic thing to know. But on two different occasions in his testimony he cited two different offences for which he said he arrested Mr. Martin: impaired care or control and “impaired operation”.

[271] Therefore, there is no clear evidence regarding on which charge he arrested him. Officer Grosman was his training officer. He was close at hand, but he did not have any helpful evidence in this regard.

[272] Concerning the drug charges, Officer Pham “informed” Mr. Martin of the drug charges against him by way of telling Sgt. Ho during the booking-in procedure that Mr. Martin was arrested for possession of “a Schedule I, Schedule III”. There is no evidence that Officer Pham did anything more than this to explain to Mr. Martin what the drug charges against him were. I note that this information was not even addressed at Mr. Martin. Had he been momentarily distracted, he would have missed it.

[273] Moreover, the language that Officer Pham used in telling Sgt. Ho about the drug charges was cryptic, vague and jargonistic. This poor communication was exacerbated by the fact that Mr. Martin was inebriated and was in the middle of being booked into the police station. It was a stressful situation for Mr. Martin, especially since he was protesting that he did not have any outstanding firearm charges as the police thought that he did.

[274] Additionally, there is no evidence that after the booking in they told Mr. Martin what drug charges he was facing.

[275] This failure on the part of the police compromised Mr. Martin’s ability to fully exercise his right to counsel under s. 10 (b) because they had not told him clearly all the charges that he was facing. Therefore, he did not know the extent of his jeopardy.

[276] I find that the police acted in a cavalier, reckless manner because they did not take Mr. Martin’s Charter rights under ss. 10 (a) and (b) seriously. It is perhaps understandable to a certain degree that Officer Pham would make these mistakes because he was new to the force. But there is no reason why his training officer, Officer Grosman, did not help Officer Pham by saying something to him, or by stepping in to ensure that Mr. Martin’s rights were recognized and accommodated.

[277] Moreover, the breach of Mr. Martin’s rights under s. 8 aggravates the situation. It is troubling that routine strip searches are still being performed despite all the jurisprudence from our appellate courts that have for years stated they are not acceptable. The appellate courts all the way up to the Supreme Court of Canada have stated many times that strip searches are extremely invasive and seriously impact a person’s right to privacy and security of the person.

[278] Therefore, I find that the breaches of Mr. Martin’s rights under ss. 10 (a), (b) and 8 are serious individually and even more serious collectively. The breaches cannot be classified as the type of breaches that the Supreme Court of Canada described as “inadvertent, technical or otherwise minor infringements” which “impact less upon the rule of law” (R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, para. 143).

[279] I find that this factor pulls strongly toward the exclusion of the evidence.

The impact of the breach on the Charter-protected interests of the accused

[280] The impact of the breaches on Mr. Martin was significant. He did not know the extent of his jeopardy in order to seek fully informed advice from his lawyer, and he was strip searched. As explained above, these are significant detriments to his Charter-protected interests.

[281] I find that this factor pulls strongly toward the exclusion of the evidence.

Society's interest in the adjudication of the case on its merits

[282] Society has a strong interest in the adjudication of the charges against Mr. Martin on the merits of the cases. He is charged with numerous offences varying in degrees of seriousness. The evidence is reliable and critical to the Crown’s case. Excluding the evidence will make the prosecution impossible.

[283] In Le, para. 142, the court stated that the third line of inquiry usually pulls towards finding that admitting the evidence would not bring the administration of justice into disrepute.

[284] The court said that this is particularly so “where the evidence is reliable and critical to the Crown's case [citation omitted], [but] …. the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case at this stage.

[285] The court stated further that “Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility” (citation omitted).

Balancing the assessments under each of these lines of inquiry

[286] According to Grant, I must “balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.”

[287] In the case at bar, there are multiple, serious breaches of Mr. Martin’s rights under the Charter. I found that the breaches resulted from carelessness, lackadaisical consideration of Mr. Martin’s rights under the Charter, and from ignoring many years of the courts’ pronouncements on strip searches carried out as a matter of routine practice.

[288] Le said that “courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutional norms reflected in this Court's Charter jurisprudence that has emphasized the importance of individuals' liberty interests” (Para. 159).

Disposition under s. 24 (2)

[289] After considering all the lines of inquiry above, the evidence and circumstances of the case, the law, and counsels’ submissions, I find that it would bring the administration of justice into disrepute to admit any of the evidence on any of the charges against Mr. Martin.

[290] I grant the defence’s application and exclude all the evidence against Mr. Martin. There being no other evidence against him, I dismiss all the charges.

Released: April 12, 2022 Justice J. W. Bovard

[1] The Crown conceded that the charge was dismissed (transcript, January 27, 2022, page 122).