ONTARIO COURT OF JUSTICE

CITATION: R. v. Samuels, 2023 ONCJ 596

DATE: 2023 06 28

COURT FILE No.: Central East Region: Courthouse: File #22-218103408-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

MICHAEL TREVOR SAMUELS

Before Justice Peter C. West

Evidence Heard February 8 and 9, 2023; April 17, 2023

Oral Submissions Heard May 4, 2023

Oral Reasons for Judgment Given June 28, 2023

Ms. R. Egberts............................................................... counsel for the Crown

Mr. J. Wilkinson/ A. Iyer............. counsel for the defendant, Michael Samuels

WEST J.

[1] Michael Samuels is charged on May 31, 2022 with trafficking in a Schedule 1 substance, namely cocaine, contrary to the Controlled Drugs and Substance Act, s. 5(1); possession for the purpose of trafficking in a Schedule 1 substance, namely cocaine, contrary to the Controlled Drugs and Substance Act, s. 5(2); possession for the purpose of trafficking in a Schedule 1 substance, namely crystal methamphetamine, contrary to the Controlled Drugs and Substance Act, s. 5(2) and fail to comply with release order, contrary to s. 145(5)(a) of the Criminal Code of Canada. Mr. Samuels elected to have a trial in the Ontario Court of Justice and pleaded not guilty.

[2] At the commencement of the trial the defence conceded that if Mr. Samuels was found to be in possession of the two different substances it was for the purpose of trafficking and the Crown did not have to prove that beyond a reasonable doubt. The defence brought a Charter application pursuant to s. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. It was agreed that this application could be dealt with by way of a blended hearing. The defence was seeking a stay of proceeding or exclusion of evidence pursuant to s. 24(1) and 24(2) of the Charter. The Certificates of Analysis from Health Canada were admitted, as well as an Affidavit of continuity and marked collectively as Exhibit 1. Continuity was not an issue to be raised by the defence. Exhibit 2 was the Release Order dated March 25, 2022, and signed by Michael Samuels and the Information it was related to.

1. Factual Background and Findings

[3] P.C. Tillsley and P.C. Marriott were on foot patrol walking southbound on Prince Street in downtown Oshawa at 13:27 hours on May 31, 2022, when they observed two men standing just down a laneway south of King Street, beside the Michael Starr Building. Exhibit 8 contains two google maps and google photos showing the area in downtown Oshawa that these officers walked in after leaving 17 Division on foot patrol. 17 Division, Police Headquarters is located at 77 Centre Street that runs north/south to the west of Prince Street, the officers were walking on Prince Street, which on the map appears to be broken up but in reality, it is not, as there is a walkway under a building, which reconnects to Prince Street just north of King Street. The photographs are from Google Maps and the first photograph in Exhibit 8 shows the very clear sightlines looking south on Prince Street to the laneway to the east of the Michael Starr Building, as described by P.C. Tillsley and P.C. Marriott in their evidence.

[4] P.C. Tillsley recognized one of the men as being someone he knew as Coolio, who turned out to be Michael Samuels. Mr. Samuels was straddling a bicycle and P.C. Tillsley knew Coolio was on a release order. He observed Mr. Samuels putting small individually wrapped plastic baggies from a larger plastic bag into the hand of the other man, who was unknown. P.C. Marriott also observed Mr. Samuels, who he recognized, dropping 3 small plastic baggies into the other man’s hand from a larger bag. P.C. Tillsley saw the other man give something to Mr. Samuels. Both officers believed they were observing a drug transaction taking place. In cross-examination P.C. Tillsley testified he was able to first see the two men talking in the laneway when they were a considerable distance from them. He and P.C. Marriott saw what they believed to be a drug transaction between the two men when they were on the south side of King Street only five to six feet away from where the two men were standing.

[5] The two men observed the two uniformed police officers walking towards them and started to leave. P.C. Tillsley grabbed the backpack Mr. Samuels was wearing, as he tried to get away on his bicycle. He advised Mr. Samuels not to leave as he was a police officer and Mr. Samuels was under arrest. Both officers were in uniform. P.C. Tillsley pressed Mr. Samuels against a white car that was parked in the laneway facing King Street to restrain him. Mr. Samuels had a ripped plastic bag with more of the small, wrapped baggies in his right hand that were falling onto the ground. During the arrest this plastic bag with more of the small individually wrapped baggies also fell to the pavement. P.C. Marriott dealt with the other individual, who was identified later as Shane Eyre. Both individuals were handcuffed to the rear. P.C. Tillsley advised by radio that he and P.C. Marriott had two in custody and backup assistance was requested at 13:30 hours, which arrived very shortly after the arrest.

[6] P.C. Tillsley observed Canadian currency in Mr. Samuels left hand. He asked Mr. Samuels if he had anything on his person that could cause him injury or be harmful to him – anything sharp, pointy or could prick him. Mr. Samuels told the officer he had another bag in his waistband under his shirt. P.C. Tillsley lifted Mr. Samuels shirt and found another clear plastic baggie sticking out of Mr. Samuels’ underwear/pants waistband. P.C. Tillsley was able to grab this bag and pull it out. He testified he only grabbed the plastic that was sticking out of Mr. Samuels waistband. He moved Mr. Samuels to the side of the Michael Starr Building, so they would not step on the small plastic baggies that had fallen to the ground by the white car. P.C. Wilson had arrived on scene at 13:31 and he assisted with the search of Mr. Samuels incident to arrest. P.C. Tillsley testified this search was conducted for safety reasons and possible means of escape by Mr. Samuels.

[7] P.C. Tillsley testified he believed he left the small baggies he saw falling from the larger bag and the bag they were falling from, on the ground in front of the white car. He further testified he believed another officer retrieved them from the ground. P.C. Tillsley testified all of the drugs found on Mr. Samuels were put in a brown paper bag and brought to 17 Division when Mr. Samuels was transported there by he and P.C. Wilson.

[8] Mr. Samuels was wearing a number of layers of clothing. He was wearing camouflaged sweatpants or joggers over a pair of jeans and his underwear. He had a shirt on. P.C. Tillsley realized Mr. Samuels was wearing multiple layers of clothing because he could still feel items in pockets underneath the joggers where items had been taken from. Mr. Samuels’ joggers (sweatpants) were pulled down and he was wearing jeans underneath them and cell phones and other items were discovered in the jeans’ pockets and removed.

[9] P.C. Wilson, who assisted in the search of Mr. Samuels incident to his arrest, testified he searched Mr. Samuels beside the Michael Starr building. He had dealt with Mr. Samuels previously. When he arrived, he took custody of Mr. Samuels and asked P.C. Tillsley if Mr. Samuels had been patted down – search incident to arrest, and P.C. Tillsley advised he had not been, so P.C. Wilson commenced this search of Mr. Samuels. He put items he found onto a ledge under a window by the wall of the building and then later put them into a brown paper bag provided by Sgt. Kerr. Mr. Samuels was wearing two layers of pants; the outer layer was a pair of camouflaged joggers with pockets and underneath that he was wearing jeans with a number of pockets. P.C. Wilson found a large wallet with a large quantity of cash and also found further large quantities of rolled up cash in one of the pockets. Numerous other items were discovered; namely a string of watches attached to the waistband of the jeans, eight (8) cell phones, weigh scales (3), a small propane torch/lighter and white papers and various cards. See Exhibit 7 (Photos 2, 4, 5, 6, 7, 8, 9, 10, 11, and 13). All of Mr. Samuels’ property removed from his two layers of pants was put into a brown paper bag by P.C. Wilson, including items he originally put onto the ledge before he was given the brown paper bag.

[10] P.C. Wilson testified he did not locate any narcotics during his search of Mr. Samuels joggers (sweatpants) or his jeans. He put some of the items he found on a ledge by the Michael Starr Building, which he later put into a brown paper bag provided by Sgt. Kerr. Mr. Samuels’ joggers were pulled down so the jean pockets could be searched. After removing all items from Mr. Samuels joggers P.C. Wilson could still feel objects under this layer of clothes so they were pulled down to his ankles, revealing a dark pair of jeans. After the jeans pockets were emptied, Mr. Samuels’ joggers were pulled back up from his ankles. All of the items placed on the ledge were items found by P.C. Wilson in Mr. Samuels’ pockets. There were not any narcotics on the ledge. P.C. Wilson never observed P.C. Tillsley find any narcotics on Mr. Samuels person.

[11] None of the uniform officers had body worn cameras; however, Sgt. Kerr, who attended shortly after the arrest did have a body worn camera, which was played and marked as Exhibit 9. The evidence led during this trial reflected that body worn cameras were a new piece of equipment being utilized by Durham Regional police in Oshawa. In fact, P.C. Tillsley testified Sgt. Kerr was new to being an officer who had a body worn camera. It is important to note that Sgt. Kerr was not intentionally recording every step taken by the various officers on scene involved in the arrest or in the search of the two individuals (Michael Samuels and Shane Eyre); rather, his body worn camera was recording whatever was taking place directly in front of him wherever he was walking or standing and facing towards.[^1]

[12] Exhibit 9 is the video from Sgt. Kerr’s body worn camera. He arrived on scene in his marked cruiser beside the Michael Starr Building at 13:31:45. He stepped out of his police cruiser at 13:31:57. There was a white car parked on the east side of the laneway and there are three items on the pavement in front of it, two of which appear to be clear plastic bags with items inside. As Sgt. Kerr walked to the front of his vehicle, P.C. Tillsley can be seen standing beside Mr. Samuels, who is handcuffed to the rear and sitting on a metal railing separating the laneway from the side of the building. P.C. Marriott is also seen standing just north of P.C. Tillsley’s location, closer to King Street, beside another man, Mr. Shane Eyre, who is sitting on the railing and handcuffed to the rear. Two other police officers, one who is P.C. Wilson can be seen walking from the south of the laneway to the location where the officers have these two individuals in custody.

[13] At 13:32:15, it appears P.C. Tillsley had hold of Mr. Samuels with his left hand and he also had a clear plastic bag containing a white substance and a darker substance in his right hand together with his black rubber gloves. It is difficult to see exactly everything that is in this plastic bag. He is turned and looking to the south of the laneway. P.C. Wilson testified he never had possession of the plastic bag that can be seen in P.C. Tillsley’s right hand. At 13:32:20, P.C. Wilson took over custody of Mr. Samuels by the wall of the Michael Starr Building from P.C. Tillsley. At 13:32:36, P.C. Wilson asked P.C. Tillsley if he had searched Mr. Samuels incident to his arrest, to which P.C. Tillsley replies, “No.”

[14] At 13:32:41, P.C. Tillsley can be seen bending down and picking up items off the pavement that could be seen earlier in front of the white car. When P.C. Tillsley is shown this segment of Exhibit 9 he agreed he was the officer who picked up the drugs that had fallen to the ground. P.C. Tillsley testified his recollection of another officer picking up the drugs from the ground, as recorded in his notes and report, was mistaken and incorrect, as the video from Sgt. Kerr’s body worn camera clearly shows he did this. As P.C. Tillsley was doing this, P.C. Wilson moved from the metal railing towards the Michael Starr Building wall, as at 13:32:47 he can be seen searching Mr. Samuels, who is now standing beside the wall. There is a ledge about five feet high under a window, where P.C. Wilson testified, he put some of the items he found when searching Mr. Samuels’ pockets incident to his arrest. It is clear from the video that Mr. Samuels’ pockets before he was searched incident to arrest on his camouflaged joggers were full of items.

[15] At 13:32:58, P.C. Tillsley can be seen coming up from his squat after picking up the drugs from the ground. He testified P.C. Piorkowski is standing next to him on the video while he is retrieving the drugs from the pavement. There are no plastic bags on the white car’s front hood at this time. It was at this point that Sgt. Kerr walked to the rear of his vehicle and retrieved some brown paper bags. Both P.C. Tillsley and P.C. Piorkowski can no longer be seen on the video as a result of this. When Sgt. Kerr leaves the front of the white car there is nothing on its front hood.

[16] When Sgt. Kerr walked back towards the white car at 13:33:34, P.C. Piorkowski can be seen looking into the backpack, which was identified as being Mr. Samuels. On the hood of the white car appears to be a number of plastic bags with something in them. P.C. Piorkowski testified he observed three plastic bags on the front hood of the white car, which he tied up to prevent the contents of each from falling out. He was provided with a brown paper bag to put these plastic bags, which he believed contained drugs, into. He testified he maintained control of these plastic bags because P.C. Tillsley and P.C. Wilson were involved in searching Mr. Samuels incident to his arrest. This was not captured on the video because Sgt. Kerr walked past P.C. Piorkowski and then stood watching P.C. Tillsley and P.C. Wilson interacting with Mr. Samuels.

[17] P.C. Tillsley can be seen on video speaking to Mr. Samuels as he is being searched incident to arrest by P.C. Wilson. P.C. Tillsley is asking Mr. Samuels for his birth date and what his address is, and he is writing the information provided by Mr. Samuels into his police notebook. At 13:34:28, P.C. Tillsley advises Mr. Samuels he was arresting him for trafficking in a Schedule 1 substance and possession for the purpose of trafficking in a Schedule 1 substance and provides him with his right to counsel. Mr. Samuels says he understands and when asked if he wanted to call a lawyer, he advised his lawyer is Hicks, Block, Adams. All of these pieces of information are in P.C. Tillsley’s police notebook. P.C. Tillsley also prepared a detailed Arrest Report, which contained the information in the police notebook respecting the time of arrest and right to counsel, caution and a detailed description of his observations and investigative steps he and other officers were involved in.[^2] There is also some conversation between P.C. Tillsley and Mr. Samuels about whether he will be released.

[18] P.C. Tillsley testified the drugs on the pavement in front of the white car were the small individually wrapped baggies of drugs that had fallen to the ground when he was affecting Mr. Samuels’ arrest, which were from the larger plastic bag he first observed Mr. Samuels pour the small baggies into the other man’s hand. Also, it is my view the larger plastic bag containing more of these small individually wrapped baggies of drugs was also on the pavement in front of the car. In my view two of the three items on the pavement in front of the white car, which can be seen on the video at 13:31:57, are the plastic bags of drugs P.C. Tillsley can be seen squatting to pick up from the pavement. It is difficult to know what the third item is. Mr. Wilkinson suggested in cross-examination it was a drink box, but this was not readily ascertainable in my view.

[19] Further, based on the totality of the evidence concerning the drugs found on Mr. Samuels by P.C. Tillsley, it is my view the clear plastic bag in P.C. Tillsley’s right hand at 13:31:15, is the plastic bag Mr. Samuels told him was in his waistband when P.C. Tillsley had asked Mr. Samuels if he had anything on his person that was pointy, could prick, or hurt P.C. Tillsley. I accept P.C. Tillsley’s evidence that he lifted up Mr. Samuels shirt and saw a plastic bag sticking out from his waistband and P.C. Tillsley pulled it out. This is the clear plastic bag he is holding when he turned Mr. Samuels’ custody over to P.C. Wilson and he went to the front of the white car and picked up the drugs that fell from Mr. Samuels’ hands onto the pavement during his arrest. It was after P.C. Tillsley went to pick up the plastic bag from the pavement and P.C. Wilson began the search of Mr. Samuels incident to arrest that Sgt. Kerr walked to the back of his police SUV to retrieve the brown paper bags. As a result, both P.C. Tillsley and P.C. Wilson are no longer on Sgt. Kerr’s body worn camera. Sgt Kerr returned and provided a brown paper bag to P.C. Wilson, who put the items he had removed from Mr. Samuels’ pockets of his joggers and jeans into.

[20] At some point P.C. Tillsley spoke to P.C. Piorkowski and requested he seize Mr. Samuels bicycle, which was lying on the ground by the metal railing in the laneway, and for him to bring it back to 17 Division, which he did.

[21] At 13:34 P.C. Tillsley advised Mr. Samuels he was under arrest for trafficking in a schedule 1 substance and possession of a schedule 1 substance for the purpose of trafficking as he believed Mr. Samuels was selling drugs to the other individual. He then read Mr. Samuels his right to counsel and Mr. Samuels advised he wished to speak to a lawyer and named Hicks Block Adams as his preferred lawyer. He was also cautioned, which he indicated he understood. Mr. Samuels asked P.C. Tillsley whether he would be held for bail and the officer advised him he did not know the conditions he was released on and advised Mr. Samuels about s. 524 of the Criminal Code. When P.C. Tillsley was speaking with Mr. Samuels and writing in his police notebook, P.C. Wilson had already begun to search Mr. Samuels incident to arrest. P.C. Tillsley can be seen on video writing things into his notebook, which he said were the times and what he was reading to Mr. Samuels and Mr. Samuels’ responses.

[22] After giving Mr. Samuels his right to counsel, P.C. Tillsley and P.C. Wilson are seen on the video continuing to search Mr. Samuels. P.C. Tillsley testified Mr. Samuels’ comment about something being in his waistband occurred before P.C. Wilson arrived on scene and became involved in the search incident to arrest. At 13:36:48, a string of watches was found by P.C. Tillsley attached to Mr. Samuels’ waistband and he advised Mr. Samuels he was removing them. At 13:37:40, P.C. Piorkowski came up and asked about the cell phone he found on the ground and Mr. Samuels indicated it was his. This put in the paper bag P.C. Wilson was putting Mr. Samuels’ possessions found in his pockets. Mr. Samuels’ track pants are down around his ankles. His jeans are up and P.C. Tillsley can be seen checking the pockets of the jeans. After searching the jean pockets, P.C. Tillsley told Mr. Samuels, out of respect for him he was going to pull up his joggers.

[23] P.C. Piorkowski testified that when he arrived P.C. Tillsley was putting plastic bags with what appeared to be Schedule 1 substances onto the hood of the white car. P.C. Piorkowski testified he was provided a brown paper bag and after he tied up the ends of the plastic bags on the hood of the white car (13:39:45) he put them into this brown paper bag. He later provided this brown paper bag to P.C. Tillsley prior to Mr. Samuels being transported to 17 Division. This can be seen on Exhibit 9 where P.C. Piorkowski had taken the backpack and a brown paper bag and put them on the hood of Sgt. Kerr’s police SUV (13:40:24-13:41:44). When P.C. Wilson drove up on King Street in front of the laneway to transport Mr. Samuels to 17 Division, P.C. Tillsley walked with Mr. Samuels by holding his arm and P.C. Piorkowski, carried the backpack and brown paper bag he had put the clear plastic bags with drugs in, to the police cruiser 13:42:16). P.C. Piorkowski testified he put these two things into the cruiser with P.C. Tillsley. It was P.C. Tillsley’s evidence that he believed he had all of the drugs he had found on Mr. Samuels in that brown paper bag given to him by P.C. Piorkowski.

[24] P.C. Tillsley believed it was this officer who picked up the drugs that had fallen to the ground and put them in a brown paper bag, which he later provided to P.C. Tillsley. Based on the evidence, I find P.C. Piorkowski put the plastic bags that P.C. Tillsley had put on the front hood of the white car into a brown paper bag, which he gave to P.C. Tillsley when he went with P.C. Wilson to transport Mr. Samuels to 17 Division.

[25] P.C. Tillsley left the scene with P.C. Wilson and Mr. Samuels at 13:45 and they arrived at 17 Division at 13:46. They pulled into the sallyport and P.C. Tillsley went into the booking area and spoke with Acting Sgt. Parcells, initially without Mr. Samuels. He advised Acting Sgt Parcells about Mr. Samuels being in custody, that he wanted to speak to his lawyer and P.C. Tillsley requested authorization to conduct a strip search of Mr. Samuels. Acting Sgt. Parcells confirmed P.C. Tillsley made this request prior to Mr. Samuels being paraded.

[26] When Mr. Samuels was brought into the booking area Acting Sgt. Parcells turned on the audio at 2:06:25 p.m. Acting Sgt. Parcells asked a number of questions of Mr. Samuels, which he answered. The booking video played by the Crown was marked as Exhibit 3, Two other videos of the booking from different positions were played by the defence and were marked as Exhibits 4 and 5. Exhibit 4 is a different camera recording the interaction between Mr. Samuels and Acting Sgt. Parcells both audio and video. Exhibit 4A is a transcript of the audio heard in that video. During the booking P.C. Tillsley advised Acting Sgt. Parcells of his grounds for requesting approval to conduct a strip search of Mr. Samuels in the private room (2:10:20 p.m.):

Acting Sgt. Parcells: …the strip search is being requested?

P.C. Tillsley: Yes, sir.

Acting Sgt. Parcells: So, can you articulate the request for the strip search for me?

P.C. Tillsley: Yep, the reason for the strip search is when he was arrested at the time a large quantity of individual sized baggies was located in the waistline of his underwear and so for safety concerns I just wanna make sure that there’s not more drugs or anything else that could harm him.

Acting Sgt. Parcells: Okay I’ll approve that search. So basically, Michael we’re going to have the officers who are gonna do a strip search.

Michael Samuels: Yeah, yeah yeah.

Acting Sgt. Parcells: So, is there any other narcotics?

Michael Samuels: No, nothing. no

Acting Sgt. Parcells: -or contraband that you

Michael Samuels: No, no

Acting Sgt. Parcells: think you have in your body right now?

Michael Samuels: No, no, no, no, no, no, no, no, no

[27] Special Constable Ryan Loschan testified that he conducted a frisk or pat down search of Mr. Samuels when he came into the cell block and took him down to one layer of clothing over his underwear. The frisk search occurred after Acting Sgt. Parcells completed asking the booking questions. The handcuffs were removed (2:11:45 p.m.) and the search process commenced. Special Constable Asling, a female officer, was assisting S.C. Loschan but did not participate in the pat down or frisk search.

[28] After the handcuffs were removed, S.C. Asling requested Mr. Samuels take off his jewellery. Mr. Samuels was wearing many rings on his fingers, bracelets and two watches on his wrist, and he had a number of gold chains around his neck. Mr. Samuels was asked if he was wearing multiple layers of clothing, to which he said yes and he was advised to go down to one layer of clothing.

[29] Mr. Samuels was also requested by S.C. Asling to remove his belt. (2:15:07 p.m.) After the belt was removed his joggers (track pants) were down around his ankles and he is told to remove them. S.C. Loschan testified the removal of Mr. Samuels trackpants was not a strip or detailed search. Mr. Samuels was still wearing a pair of jeans. S.C. Loschan was holding the back of Mr. Samuels’ jeans to prevent them from falling down because they were so loose. S.C. Loschan denied he was trying to look down inside Mr. Samuels’ pants. He did search the waistband, but he did not pull the waistband away from Mr. Samuels’ body to look down inside. Mr. Samuels was wearing underwear under his jeans and S.C. Loschan did not touch the underwear, as it is not his job to check the inside of a person’s underwear. Special constables do not perform detailed searches or strip searches of detainees. The pat down search was performed with Mr. Samuels facing the wall. S.C. Loschan also went through Mr. Samuels pockets, checked his jeans’ waistband to make sure there is nothing else on them that could harm themselves or officers or Mr. Samuels. He also utilized a wand or metal detector to see if there was anything hidden in Mr. Samuels’ clothing. After the booking was completed, Mr. Samuels would be handed over to the police officers to perform the strip search in a private room, which had been approved by Acting Sgt. Parcells.

[30] At 2:17:17 p.m., Mr. Samuels was brought into the private room for a strip search. This search was audio recorded but not video recorded. At 2:18:55 p.m. the strip search was completed, and Mr. Samuels was returned to the booking hall, and he sat on a bench. Mr. Samuels was cooperative and courteous throughout the booking procedure. S.C. Loschan did the pat down search because he is a male officer. S.C. Asling would not perform a pat down search on a male detainee.

[31] The strip search was described by both P.C. Tillsley and P.C. Wilson in their evidence. After entering the private room Mr. Samuels was requested to remove his t-shirt, which he did. He gave it to the officers, who checked it and then gave it back to him. Mr. Samuels then put the t-shirt back on. P.C. Tillsley then requested he remove his jeans and his socks, which he did. At that point he still had his t-shirt and underwear on. He gave the jeans and socks to the officers. The officers were satisfied he had nothing else secreted in or under his clothes. He put his jeans back on and his socks and they exited the private room and Mr. Samuels walked to a bench opposite the booking desk where Acting Sgt. Purcells was sitting. He was brought to a cell by the special constables at 2:27:30 p.m..

[32] After Mr. Samuels was left in the custody of the special constables, who placed him in cells to await his lawyer calling, P.C. Tillsley went to the SOCO room to take photographs of the drugs and process/weigh them, and the other items seized. The first thing he did upon arriving in the SOCO room was to look up Hicks Block Adams on the computer for the telephone number. P.C. Tillsley testified that Mr. Samuels on the drive to 17 Division provided the name Kristen as being his lawyer, which he put in his Arrest Report. On the website for the law firm, P.C. Tillsley found the name, Kristin Bailey and at 14:36 he placed a call to her about Mr. Samuels arrest and his request to speak to a lawyer and left a message.

[33] He then began to process the drugs he had found on Mr. Samuels and had seized. P.C. Marriott took the photos of everything that was inside the brown paper bags, including the drugs, the currency and all of the items found on Mr. Samuels. Photo 15 of Exhibit 7 shows all of the drugs P.C. Tillsley found on Mr. Samuels, both the plastic bag containing small individually wrapped baggies he had in his hand and the plastic bag he pulled from Mr. Samuels waistband at the time of his arrest. P.C. Tillsley testified the drugs shown in Exhibit 7, Photos 16, 17, 19, 20 and 21 were all found in this plastic bag (empty plastic bag in Photo 15) Mr. Samuels told P.C. Tillsley was in his waistband. Photo 18 shows a plastic bag with small individually wrapped white and grey baggies. P.C. Tillsley testified these two colours were the packaging or plastic containing the drug not the colour of the substance itself.

[34] Once all of the photos were taken, P.C. Tillsley believed Mr. Samuels’ jeopardy had changed so he went to speak to Mr. Samuels in cell 5 at 13:29 to re-advise him of all of the charges he would be facing: possession for the purpose of trafficking Schedule 1 substance x2; trafficking Schedule 1 substance and breach of release order and he re-read him his right to counsel. Mr. Samuels advised he wanted to speak to Kathryn Dora. So, P.C. Tillsley returned the SOCO room and searched on the computer there. He found a Kathryn Doyle. When he spoke to the receptionist at 15:34 he was told Kathryn Doyle could not take a call but one of her colleagues, Tamara Davidson, would speak to Mr. Samuels. P.C. Tillsley then transferred the call to cells so Mr. Samuels could speak with this counsel.

[35] Once Mr. Samuels was speaking to his lawyer, P.C. Tillsley began processing the drugs by weighing them, processing them to be sent off for analysis. Mr. Wilkinson conceded possession for the purpose of trafficking was not an issue, as well as the analysis of each of the drugs and the continuity were also conceded. P.C. Tillsley had no further involvement with Mr. Samuels.

2. Analysis

[36] Written Charter submissions were provided by counsel respecting the charges facing Michael Samuels. Mr. Wilkinson, on behalf of Mr. Samuels has raised five breaches of Mr. Samuels’ Charter rights:

a. s. 9 and s. 8 breach: arbitrary detention as there were no reasonable grounds to detain and arrest Mr. Samuels for trafficking in a controlled Schedule 1 substance;

b. s. 8 breach: Mr. Samuels’ rights under s. 8 were violated by the improper strip search in the field (during submissions Mr. Wilkinson alleged two unlawful strip searches in the field);

c. s. 8 breach: Mr. Samuels’ rights under s. 8 were violated by the improper strip search in the booking area by S.C. Loschan;

d. s. 8 breach: Mr. Samuels’ rights were violated by the unnecessary strip search in the private room at the station; and

e. s. 10(b) breach: Mr. Samuels’ right to counsel was violated by the delay of two hours in implementing his right to counsel.

[37] Mr. Wilkinson during his submissions on a number of occasions indicated he recognized he needed all three strip searches to be found as breaches, together with the alleged s. 10(b) breach of Mr. Samuels’ right to counsel, if he was to be successful on his argument for exclusion under s. 24(2). The s. 10(b) breach related to the delay of just over two hours in Mr. Samuels speaking to his lawyer.

[38] It was the Crown’s position there was only a search incident to arrest conducted by P.C. Tillsley and P.C. Wilson at the scene or in the field. There was nothing done by either officer that amounted to a strip search or infringed in any way Mr. Samuels’ s. 8 Charter rights. Further, the search by S.C. Loschan at the 17 Division booking hall was a pat down or frisk search and nothing more. The search S.C. Loschan did was not a strip search and there was no s. 8 Charter breach. Finally, the strip search approved by Acting Sgt. Parcells, was appropriate, necessary and Charter compliant. Again, Mr. Samuels’ s. 8 Charter rights were in no way violated.

[39] The Crown also indicated that any delays in Mr. Samuels speaking to his lawyer were fully explained in the evidence. P.C. Tillsley implemented Mr. Samuels’ request to speak to counsel by leaving a message with a lawyer, Kristen Bailey at Hicks, Block, Adams. He believed Mr. Samuels told him his lawyer’s name was Kristen and when he checked the law firm website, he found Kristen Bailey’s name and left a message. After photographing the drugs seized from Mr. Samuels, P.C. Tillsley believed there was a change in Mr. Samuels’ jeopardy because he was going to be facing additional charges to what he was originally arrested. It was when he advised Mr. Samuels about these new charges and re-read the right to counsel, Mr. Samuels then told him his lawyer’s name was Kathryn Dora. He checked the firm’s website again and found a lawyer by the name of Kathryn Doyle, and he called, spoke to the receptionist who put him through to a colleague of Kathryn Doyle, Tamara Davidson. He was connected to this lawyer who he put through to cells to speak with Mr. Samuels in private. There was no breach of Mr. Samuels’ s. 10(b) Charter rights. It was the submission of Ms. Egbert if there was a breach because of the two-hour delay in implementing Mr. Samuels’ right to counsel, then R. v. Tim 2022 SCC 12 governed and the drugs should not be excluded.

A. Did Mr. Samuels arrest for trafficking in a Schedule 1 substance and Possession for the Purpose of Trafficking in a Schedule 1 Substance Breach s. 9?

[40] In Mr. Wilkinson’s written submissions, he argued that the arrest by P.C. Tillsley and P.C. Marriott of Mr. Samuels and Mr. Eyre was not based on reasonable grounds. As a result, the officers did not have the right to detain them and any searches that followed this unlawful arrest was also unlawful. The defence seemed to focus their argument on the fact that the notes in P.C. Tillsley’s police notebook only had the barest of details, which did not set out sufficient details of the officers’ observations of what the two men were doing before their arrest or of how the search incident to the arrest occurred to enable the court to meaningfully review the exercise of these police powers. Mr. Wilkinson included in his materials and documents P.C. Tillsley’s police notebook notes and his Arrest Report, which P.C. Tillsley began preparing after he had finished dealing with the exhibits and arranging for Mr. Samuels to contact counsel, and which was a very detailed accounting of his involvement with Mr. Samuels from his initial observations of Mr. Samuels dropping 3 small individually wrapped baggies of what appeared to be drugs from a larger bag into Mr. Eyre’s hand and Mr. Eyre responding by placing what P.C. Tillsley believed to be cash into Mr. Samuel’s hand. These observations were made when the two officers were approximately 5-6 feet from the two men. The issue to be determined is whether these observations provided reasonable grounds for the arrest of both Mr. Samuels and Mr. Eyre for trafficking in a Schedule 1 substance.

[41] Uniformed police officers with Durham Regional Police Service utilize their police notebooks to record times and brief details to assist in the preparation of a typed Supplementary or Arrest Report, which the officer is required to prepare once they are back at the police division. This is borne out by the documents provided by the defence relating to each of the Durham Regional Police Officers involved in this matter – their police notebooks contain times when things occurred and brief notes respecting process; however, each police officer’s Supplementary or Arrest Report contains typewritten detailed descriptions of their involvement in the matter before the court, written contemporaneously with the events each officer was involved in. I do not agree with the defence characterization of the officer’s notes. It is my view this practice by Durham Regional Police Force provides more detailed disclosure of an officer’s involvement, which is easily read and understood because it is typed, as opposed to handwritten notes with an officer’s abbreviations or acronyms. These type-written notes are prepared once the officer is back at the police station, which is exactly what occurs if the officer is writing up their notes in a standard issue police notebook.

[42] Section 495(1) (a) and (b) of the Criminal Code provides that a peace officer may arrest without warrant a person who has committed an indictable offence or who, "on reasonable grounds," the peace officer believes has committed or is about to commit an indictable offence, or a person whom the peace officer finds committing a criminal offence.

[43] In R. v. St. Clair 2018 ONSC 5173, at paras. 47 - 49, Justice K. Campbell provides a thorough analysis of the “reasonable grounds” standard, which I adopt:

47 The statutory requirement of "reasonable grounds" means that (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at pp. 249-251; R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289, 39 C.R. (4th) 66 (C.A.), at pp. 298-299; R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83, affirmed, 2015 ONCA 673, 343 C.R.R. (2d) 103, at paras. 6-13; R. v. Notaro, 2018 ONCA 449, 27 M.V.R. (7th) 1, at paras. 34-36, 39-40.

48 As I have noted on earlier occasions, much has been written about the objective standard of "reasonable grounds" or "reasonable and probable grounds" in an effort to provide this important legal threshold standard with a greater degree of precision. See, for example, Can v. Calgary (Police Service), 2014 ABCA 322, 315 C.C.C. (3d) 337, at paras. 107-173; R. v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145, at para. 13; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-23; R. v. Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at para. 92; R. v. Aguas, 2015 ONSC 3462, 335 C.R.R. (2d) 312, at paras. 55-56; R. v. Gordon, 2018 ONSC 1297, at para. 43; R. v. Williams, 2018 ONSC 3654, at paras. 104-105, 108-111. The governing appellate court jurisprudence articulates the following principles surrounding the practical application of this standard:

a. Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused. See R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1168; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.

b. Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability. See R. v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270, 37 C.R. (6th) 320 (Ont.C.A.), at para. 22; R. v. Loewen, 2010 ABCA 255, 260 C.C.C. (3d) 296, at para. 18, affirmed, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.

c. In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, 286 C.C.C. (3d) 536, at para. 21.

d. The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85.

e. The standard of reasonable and probable grounds is used to define the point at which the state's interest in detecting and preventing crime begins to prevail over the individual's liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a "reasonable probability." See Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, at pp. 167-168; R. v. Debot, at p. 1166; Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, at pp. 446-447.

f. Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a commonsense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 52-54, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Canary, at para. 22; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.

49 In determining the objective reasonableness of a police officer's subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often "made quickly [by officers] in volatile and rapidly changing situations" where detached "[j]udicial reflection is not a luxury the officer can afford." See R. v. Golub, at para. 18; R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50, at para. 4; R. v. Carelse-Brown, 2016 ONCA 943, 343 C.C.C. (3d) 365, at paras. 47-48.

[44] The formulation of reasonable grounds to arrest these two men for trafficking in a Schedule 1 substance required the officers who came to this decision to subjectively believe there were reasonable and probable grounds to arrest Mr. Samuels. This belief must also be objectively reasonable, such that a reasonable person standing in the shoes of the officer and having the same information and knowledge must be able to conclude there were reasonable and probable grounds to arrest. It is not necessary for the officer to have proof of the commission of the offence beyond a reasonable doubt or even the establishment of a prima facie case against a suspect. Reasonable and probable grounds does not even require proof on a balance of probabilities or 51% probability.

[45] The defence challenged both officer’s ability to see from Prince Street what these two men were in fact up to. Both P.C. Tillsley and P.C. Marriott testified they had a clear view of the two men from the point where they were walking under a walkway on Prince Street. The first Google photo shows from the coffee shop there is a clear view of the laneway on the east side of the Michael Starr Building. I have no doubt that these two officers were observing these two men for a considerable distance as they walked. Both officers testified they had crossed King Street and were 5-6 feet from the two men when they observed what they believed to be a drug transaction – 3 individually wrapped plastic bags being dropped by Mr. Samuels, who they knew as Coolio into the hand of another man who was unknown and then something was put into Coolio’s hand by the other man. I accept the officers’ description of what they observed and their belief it was an illicit drug transaction.

[46] Both P.C. Tillsley and P.C. Marriott believed they had reasonable grounds to believe what they observed was a drug transaction between Mr. Samuels and Mr. Eyre and they believed there were reasonable and probable grounds to arrest them both for that offence. They were each entitled to consider the circumstances surrounding their observations, as well draw upon their training and experience. It is my view a reasonable person standing in the shoes of the officers and having the same knowledge and experience would have come to the same conclusion that there existed reasonable and probable grounds to arrest these two men for trafficking in a Schedule 1 substance.

[47] When the two men realized two uniformed police officers were walking towards them and had observed what they were doing, each of them attempted to flee and escape being arrested. Mr. Samuels began to cycle away but P.C. Tillsley was able to grab his backpack and prevent him from leaving. Both officers identified themselves and advised the men were under arrest. Mr. Samuels had the plastic bag containing numerous small individually wrapped plastic baggies with the ends twisted in his right hand and some were falling out onto the ground. Further, Mr. Samuels had Canadian currency in his left hand. P.C. Marriott searched Mr. Eyre incident to his arrest and found in his pocket three small individually wrapped baggies similar to the small individually wrapped baggies shown in Exhibit 7, Photo 18. All of these observations in my view corroborated P.C. Tillsley’s and P.C. Marriott’s subjective belief, which I find was objectively reasonable.

[48] In my view this was a dynamic, fast moving, rapidly changing, volatile and potentially dangerous situation where these young police officers in my view reacted professionally and with restraint in an appropriate manner. As Justice Doherty observed in R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097 (C.A.):

Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[49] Considering the totality of the circumstances it is my view that P.C. Tillsley had reasonable and probable grounds to arrest Mr. Samuels and there was no breach of Mr. Samuels’ s. 9 Charter rights. It is my view this was a lawful arrest. Generally speaking, warrantless searches and seizures are presumptively unreasonable; however, courts have long recognized the power of police officers to perform warrantless searches and seizures when they are truly incidental to an individual’s lawful arrest. The rationale behind this is that when police officers arrest someone, they need to be able to prevent any possible escape, protect themselves against any weapons or other items (certain illicit substances for example) in the individual’s possession that could injure or harm the officer or others or the individual detainee and to preserve any evidence of the alleged offence for which the individual is being arrested. (See R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, at para. 34, and R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at paras. 2-3.

[50] As a result, as a general rule the police may search arrested individuals and their immediate surroundings to discover anything that may be a threat to the safety of the officer, the detainee or the public, or which may facilitate an escape, or which may provide evidence against the accused for the crimes for which they were arrested. (See Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at para. 49:

…it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him.

See also R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at paras. 17-19, 22-25; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 23-24, 75, 84; and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 14.

[51] P.C. Tillsley testified the search incident to arrest was addressing concerns of officer safety and whether Mr. Samuels had anything that could facilitate an escape. As I indicated, it is my view P.C. Tillsley had reasonable and probable grounds to arrest Mr. Samuels and he or P.C. Wilson who arrived on scene to assist, were entitled to search Mr. Samuels incident to that arrest. As a result, the search incident to the arrest of Mr. Samuels did not violate his rights under s. 8 of the Charter.

B. Did P.C. Tillsley during the arrest when he lifted Mr. Samuels’ shirt in response to Mr. Samuels advising he had another bag in the waistband of his underwear engage in a strip search and thereby violate Mr. Samuels’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?

[52] The defence alleges that when P.C. Tillsley lifted Mr. Samuels shirt, after Mr. Samuels advised the officer he had more drugs in a plastic bag in the waistband of his underwear, this constituted a strip search in the field. The defence also pointed to Mr. Samuels’ camouflaged joggers being pulled down to his ankles, to allow officers to search the pockets of his jeans, as being a further strip search in the field.

[53] The Crown submits that when P.C. Tillsley lifted up Mr. Samuels shirt, in response to Mr. Samuels advising him there were more drugs in a plastic bag in the waistband of his underwear/pants/joggers and removed a plastic bag sticking out from his waistband, this was not a strip search. Further, it was Ms. Egberts’ submission that pulling Mr. Samuels’ joggers down to his ankles to permit officers the search incident to arrest the pockets of his jeans, which were underneath the joggers was also not a strip search, as Mr. Samuels still had a pair of jeans on. Mr. Samuels was never stripped naked, and his genitals and his buttocks were never exposed or observed or touched by the officers.

[54] The first issue to be determined is whether what P.C. Tillsley testified he did when Mr. Samuels told him he had another plastic bag tucked in the waistline of his underwear, in response to P.C. Tillsley’s question – “Did Mr. Samuels have anything on him that was pointy, or could prick him or hurt him or was he going to find anything else that could be harmful to him when he searched him?”; namely, lifting up Mr. Samuels’ shirt sufficiently to see a plastic bag sticking out of the waistline and then grabbing the plastic bag and pulling it out and then allowing the shirt to fall back in place, whether this amounted to his performing a strip search. In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 47, the majority held a strip search is defined as “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.”

[55] Based on the totality of the evidence on this issue, I find P.C. Tillsley was dealing with Mr. Samuels by himself at this point. No other officers had arrived to assist in the arrest of Mr. Samuels. He had just arrested Mr. Samuels for trafficking in a Schedule 1 substance and possession of a Schedule 1 substance for the purpose of trafficking and he had not yet commenced any search incident to arrest. Mr. Samuels still had the larger plastic bag containing numerous individually wrapped baggies (see Exhibit 7: SOCO Photos, Photo 15, the plastic bag with many small individually wrapped baggies marked “18”) in his right hand and some of the individually wrapped baggies were falling to the pavement. I have already found the officer had reasonable and probable grounds to arrest Mr. Samuels and he was entitled to conduct a search incident to arrest on Mr. Samuels.

[56] Further, P.C. Tillsley testified he had experience in arresting individuals for trafficking in drugs and he had been pricked with needles or knives when he was searching someone incident to arrest. As a result, he has a practice of asking the question he asked Mr. Samuels. Mr. Samuels told the officer he had another plastic bag in his waistline. P.C. Tillsley lifted the shirt up, which might have exposed Mr. Samuels’ belly button, he saw the plastic bag sticking out, he grabbed only the plastic bag and pulled it out. There was no evidence led that P.C. Tillsley touched, in any way, the waistband of Mr. Samuels’ underwear. There was no evidence led that he pulled out the waistband of the underwear or looked inside Mr. Samuel’s underwear at Mr. Samuels’ genitals or buttocks. I find P.C. Tillsley’s evidence was clear and straightforward. He lifted the shirt, saw the baggie, grabbed the plastic sticking out above the waistband and pulled it out. This does not meet the definition of a strip search and I find there was no breach of Mr. Samuels’ s. 8 Charter rights by P.C. Tillsley.

[57] It is difficult to understand what the defence would have P.C. Tillsley do after Mr. Samuels advised him, he had another plastic bag in the waistband of his underwear. It would be reasonable for P.C. Tillsley to believe this bag contained more drugs. Mr. Wilkinson in his questions of P.C. Tillsley and his submissions to me, made reference to the fact this plastic bag (shown in Exhibit 7, Photo 15, is the now empty plastic bag on the left in the photo) had three plastic baggies containing other drugs. Was P.C. Tillsley supposed to leave this plastic bag in Mr. Samuels’ waistband until they arrived at the police station? It is my view this would be verging on absurd for P.C. Tillsley to leave this plastic bag of drugs in Mr. Samuels’ waistband until they arrived at 17 Division and would be completely illogical and contrary to ensuring Mr. Samuels’ safety, officer safety or ensuring the preservation of evidence the officer had been advised was on Mr. Samuels’ person. Further, P.C. Tillsley at this point is by himself dealing with Mr. Samuels. P.C. Marriott was dealing some distance away with Mr. Eyre. Finally, all P.C. Tillsley did was lift up Mr. Samuels shirt and observed that Mr. Samuels had told him the truth because there was a plastic bag sticking out of his waistband. He did not touch the waistband of the underwear; he grabbed the plastic bag and pulled it out and let the shirt fall back into place. There was no aspect of violation of Mr. Samuels' personal privacy in the search and the manner P.C. Tillsley removed this plastic bag, which contained three other plastic bags containing suspected drugs. Mr. Samuels private areas were not exposed in any way. The roadside search as I have found did not lead to a violation of Mr. Samuels’ Charter rights.

C. Did the lowering of Mr. Samuels’ joggers to allow the officers to access his jeans’ pockets amount to a strip search and thereby violate Mr. Samuels’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?

[58] When both P.C. Tillsley and P.C. Wilson are searching the pockets of Mr. Samuels’ camouflaged joggers P.C. Wilson can be seen on Sgt. Kerr’s body worn camera video struggling with something that was in the front left pocket of Mr. Samuels joggers and he is clearly looking into this pocket as he is trying to extricate what is there. Ultimately, he pulls out a large 3-fold wallet, which is filled with a significant amount of Canadian currency (see Exhibit 7, Photo 2, 4 and 5). The video does not capture when the joggers are pulled down to gain access to the jeans, which were Mr. Samuels’ second layer of clothing. It is my view the action of pulling Mr. Samuels’ joggers down to his ankles by P.C. Wilson, which he admitted, did not amount to a strip search. The joggers were an outer layer of clothing, under which Mr. Samuels was wearing a pair of jeans and underwear (based on the evidence led during this trial). This was a removal of clothing, but it was not “to permit a visual inspection of a person's private areas, namely genitals, buttocks…or undergarments.” Mr. Samuels was still completely clothed. His genitals and buttocks were never exposed and there was no evidence that his genitals or buttocks were exposed or that P.C. Tillsley or P.C. Wilson ever pulled the jeans or underwear to be able to look down inside the jeans. The description by the officers of the search incident to arrest, which I find to be a pat down or frisk search, and the segments where this search is shown on the video, in my view does not meet the definition of a strip search and I find there was no breach of Mr. Samuels’ s. 8 Charter rights as a result of this occurring at the scene (see discussion in R. v. Choi, infra, at paras. 75-80, which I set out at paragraph 80 of these reasons).

[59] It is clear from the video that there were numerous bulky and hard items inside Mr. Samuels’ two layers of clothing. When one examines the items found and seized by P.C. Tillsley and P.C. Wilson on Mr. Samuels’ person, other than the plastic baggies of narcotics, it is completely understandable why the search incident to arrest took as long as it did. On every occasion one of the officers reached into a different pocket of Mr. Samuels’ pants, numerous items were found. There were two plastic bags with what appears to be white paper and dark items that appear to be jewellery of some type, displayed in Exhibit 7 Photo 5, 10-13 which Mr. Wilkinson suggested to P.C. Tillsley were narcotics, when these plastic bags were sitting on the ledge. I do not agree with his characterization or description of the contents of those two plastic bags found in Mr. Samuels’ pants pockets. P.C. Wilson had put these plastic bags on the ledge prior to being provided the brown paper bag. Mr. Wilkinson suggested these plastic bags on the ledge contained drugs; however, P.C. Wilson testified he did not find any drugs during his search incident to arrest of Mr. Samuels. I find these plastic bags, shown in the photos, did not contain narcotics and I accept P.C. Wilson’s evidence that he did not discover any narcotics when he conducted his search of Mr. Samuels.

[60] As I indicated in my discussion of the facts and my factual findings, P.C. Tillsley was clearly mistaken and inaccurate when he testified he believed another officer (P.C. Piorkowski) had picked up the small individually wrapped baggies that had fallen onto the pavement in front of the white car, as well as the larger bag with the remaining small individually wrapped baggies that no longer remained in Mr. Samuels’ right hand after P.C. Tillsley arrested him, handcuffed his hands behind his back and then moved him to the metal railing to sit, so as to prevent Mr. Samuels from stepping on those drugs. It was clear from a short portion of Sgt. Kerr’s body worn camera video that after P.C. Wilson arrived on scene P.C. Tillsley went to the front of the white car and can be seen squatting down. It is a reasonable inference that he was picking up these small individually wrapped baggies and the larger ripped plastic baggie containing other small individually wrapped baggies from the ground.

[61] What is also clear from the video is that P.C. Tillsley prior to going to the front of the white car, prior to P.C. Wilson arriving on scene, was holding in his right hand – his black gloves together with a plastic baggie, containing (from what I believe can be seen on the video) a white substance and a darker substance in plastic bags, from which in my view a reasonable inference can be drawn that this was the plastic bag P.C. Tillsley grabbed and pulled out of Mr. Samuels’ waistband after Mr. Samuels told him it was there. When he left Mr. Samuels in the custody of P.C. Wilson and immediately went to the front of the white car and squatted down, he still had that plastic bag gripped in his hand. It was not possible to see the complete contents of the plastic bag P.C. Tillsley was gripping and holding in his right hand. In my view it would be pure speculation to suggest it only contained a white and a dark substance.

[62] The evidence of P.C. Piorkowski was clear that he was standing by P.C. Tillsley as he was squatting in front of the white car and P.C. Piorkowski can be seen on the video standing there. At some point P.C. Tillsley went back to where Mr. Samuels was with P.C. Wilson, who had commenced the search incident to arrest. When he went back to Mr. Samuels, P.C. Tillsley no longer had the plastic bag with a white substance and a darker substance gripped in his hand. P.C. Tillsley can be seen putting on his black rubber gloves that he had also been holding in his right hand. It is my view that P.C. Tillsley had put all of the drugs he had observed fall to the ground and the plastic bag with multiple things in it that he pulled out from Mr. Samuels’ waistband and seized, onto the front hood of the white car before he returned to deal with Mr. Samuels, who by that point was being searched incident to arrest by P.C. Wilson. P.C. Piorkowski was left by the white car to maintain continuity of the plastic bags with drugs. This was when P.C. Tillsley advised Mr. Samuels of the charges he was under arrest for, his right to counsel and cautioned him, all of which were written in his police notebook, and this could be seen in the video. P.C. Tillsley can then be seen assisting P.C. Wilson with the search of Mr. Samuels incident to arrest.

[63] A little later on the video P.C. Piorkowski can be seen looking at a of number plastic bags containing substances that are sitting on the hood of the white car and then he can be seen tying the ends of the plastic bags to prevent the contents from falling out. P.C. Piorkowski testified he remained by the plastic bags containing what were believed to be illicit substances to provide continuity when P.C. Tillsley walked over 5 or 6 feet to speak to Mr. Samuels and assist P.C. Wilson with the search incident to arrest. I find P.C. Piorkowski took the plastic bags that were on the hood of the white car and put them all into a brown paper bag, which he ultimately gave to P.C. Tillsley as he was getting into the passenger seat of P.C. Wilson’s police cruiser. The defence conceded continuity of the drugs shown in Exhibit 7, Photo 15. I find no other officers or persons had contact with the drugs that fell to the pavement during the arrest or the plastic bag P.C. Tillsley pulled from Mr. Samuels’ waistband other than P.C. Tillsley and subsequently P.C. Piorkowski.

[64] Based on the totality of the evidence I find that P.C. Tillsley picked up the loose small individually wrapped baggies that had fallen to the pavement as well as the larger ripped plastic bag, which contained similar small individually wrapped baggies and he put them onto the hood of the white car. Further, I find P.C. Tillsley also put the other plastic bag he had pulled out from Mr. Samuels’ waistband, which he described having “multiple things” inside, and which he was holding in his right hand when he went to pick up the drugs that had fallen during Mr. Samuels’ arrest, onto the hood of the white car. I find the only drugs seized by the police were the drugs found by P.C. Tillsley on Mr. Samuels

[65] The arrest of Mr. Samuels was a dynamic, fast moving, rapidly changing, volatile and potentially dangerous situation and in my view it is not surprising that P.C. Tillsley was mistaken in his recollection that another officer (P.C. Piorkowski) had retrieved the drugs in front of the white car and my assessment of his credibility and reliability was not detrimentally affected by this error in any way. On the video as P.C. Tillsley is leaving Mr. Samuels in P.C. Wilson’s custody, he can be heard saying to P.C. Wilson, “I just want to get all this there” – motioning towards the car and by inference the plastic bags of drugs that can be seen in the video on the pavement, which he was the only officer who knew of their existence and location. This is what in fact he did. When Mr. Wilkinson showed him Sgt. Kerr’s body worn camera video, he candidly admitted his error respecting his recollection that P.C. Piorkowski had retrieved the drugs from the ground, when the video clearly showed he was squatting and gathering up the drugs. When P.C. Tillsley said he gave his best independent recollection of what had occurred, Mr. Wilkinson told him it was “funny how memory plays that way with us.” P.C. Tillsley then made an astute comment and observation where he agreed with Mr. Wilkinson, “100%. But this is where I think the body cameras are great is because they can show us what happened.” Other than this mistake I found P.C. Tillsley to be a credible and reliable witness and do not believe he was deliberately lying or attempting to mislead the Court in any way in his evidence. His evidence relating to his actions with Mr. Samuels was corroborated by what can be observed on the video.

[66] Both he and P.C. Wilson were able to describe the nature and extent of the search incident to Mr. Samuels’ arrest they conducted, and, in my view, it was reasonable, proportionate, and carried out in a manner that maintained Mr. Samuels’ privacy and personal dignity. Those portions of the search captured by Sgt. Kerr’s video demonstrated that both officers treated Mr. Samuels with respect and were courteous towards him. They never expressed anger or frustration throughout their dealings with him. Similarly, Mr. Samuels was also courteous, respectful, polite and cooperative with the officers.

[67] All this to say, in my view P.C. Tillsley’s mistaken belief that P.C. Piorkowski picked up the drugs from the ground likely occurred because P.C. Piorkowski was the officer who arrived on scene and stayed with the drugs, tied up the ends of the plastic bags, put all the plastic bags containing suspected narcotics into a brown paper bag he was given for that purpose and which he ultimately turned over to P.C. Tillsley when he was getting into P.C. Wilson’s police cruiser to transport Mr. Samuels to 17 Division. It is my view that P.C. Tillsley’s mistaken recollection is completely explainable by the circumstances I have just described.

[68] I find there was no strip search conducted by any police officer of Mr. Samuels at the scene of his arrest. The search incident to his arrest was lawful and was done in an appropriate manner. There is no breach of Mr. Samuels’ s. 8 Charter rights.

D. Did Special Constable Loschan breach Mr. Samuels’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights by performing a strip search?

[69] Special Constable Loschan works at 17 Division in the booking area and is responsible to conducting pat down or frisk searches when a detainee is brought into the police station for booking and before being placed in a cell to be held for a bail hearing or released from the station. His partner was Special Constable Asling, a female officer. Acting Sgt. Parcells was the Booking Sergeant. The process involves Acting Sgt. Parcells asking questions of the detainee. This is recorded both audio and video. Once the booking questions are completed then the special constables conduct the pat down or frisk search before placing the detainee into a cell.

[70] It was the position of the defence that S.C. Loschan in putting his hands inside the waistband of Mr. Samuels’ jeans to check them for anything that might harm Mr. Samuels, or any officers was a strip search. The Crown argued this was not a strip search, rather, it was part of the frisk search that is appropriate and respects the privacy interest of the detainee. The Crown submitted the evidence disclosed (which included his testimony and the booking videos) that S.C. Loschan did not pull any of Mr. Samuels clothing out so he could look down and see inside Mr. Samuels’ genitals or buttocks.

[71] In this case S.C. Loschan conducted this search because Mr. Samuels was a male. He testified it would be inappropriate for P.C. Asling, a female officer, to conduct the frisk or pat down search. Prior to the search being conducted, Mr. Samuels was requested by S.C. Asling (2:12:12 p.m.) to remove his jewellery, which was then placed into property bags for safe keeping and a record was made as to what had been placed in the property bags. Mr. Samuels was still wearing a lot of jewellery: he removed 21 rings from his fingers, 3 bracelets, 2 watches, and a necklace from his body, which he placed on a shelf in front of where he was standing at the booking desk (Exhibit 5). These items were in addition to all of the personal property (watches, jewellery, cell phones, digital scales, small propane torch, wallet containing large quantity of Canadian currency, rolls of Canadian currency and loose Canadian currency, credit and other cards, and condoms), already found during the search incident to his arrest.

[72] S.C. Asling requested that Mr. Samuels go down to one layer of clothing, as he was wearing joggers with jeans underneath and under his jeans, he said he was wearing underwear. When Mr. Samuels pulled down the joggers, he was wearing a pair of jeans. S.C. Asling requested he remove his belt, which was on his jeans, as he was not permitted to have a belt in custody. At some point Mr. Samuels also removed his shoes and the lacing were removed by the officers. S.C. Loschan put Mr. Samuels’ belt into a bag for safe keeping with his other property. After Mr. Samuels removed the belt from his jeans (approximately 2:15:00 p.m.) and handed it to S.C. Asling, who put it on the shelf (P.C. Loschan later put it in a bag), his jeans began to fall down because they were extremely loose. As Mr. Samuels pulled down his joggers to remove them, the waist of his jeans came down and exposed the top of his underwear, which did not come down at all, and Mr. Samuels then pulled the jeans back up to his waist. It was Mr. Samuels who was pulling up his jeans when they began to fall below his waist. His shirt was untucked, and it also covered the top of his jeans and his underwear when he was standing up straight. However, at one point he had to bend over to pull his joggers over his feet to remove them and this was when his underwear was exposed. He handed S.C. Asling his joggers at 2:15:38 p.m. Between 2:15:00 p.m. when he removed his belt, until 2:15:38 p.m., there were occasions when the top portion of his underwear was above the waistband of his jeans. This occurred over a very short period of time and was not something the special officers would have been aware would happen. At no time were Mr. Samuels’ buttocks or genitals exposed and neither of the special constables were involved in any way in touching Mr. Samuels clothing when he was removing the joggers to get to one layer. I will address this further when I deal with the caselaw I was referred to by counsel.

[73] Mr. Wilkinson asked questions of Mr. Loschan as to whether he had made any notes of his involvement with Mr. Samuels and he advised he does not make notes of his involvement with a detainee during the booking. He testified the only time notes would be made if there was some form of a physical altercation with a detainee, which was not a common occurrence. S.C. Loschan testified there was no reason to do notes of a frisk search. In my view this was sensible because there are numerous cameras recording, both by video and audio, the special constable’s interactions with a detainee. In this case there were cameras recording these interactions from three different perspectives (Exhibits 3, 4 and 5).

[74] Mr. Samuels complied with S.C. Asling’s request to take off his first layer – the camouflage joggers/track pants. He had a pair of jeans on under the joggers he removed. On the video S.C. Loschan agreed he had his hands holding onto Mr. Samuels’ waistband of his jeans. He was doing this for two reasons: first, the jeans were loose, and he did this to prevent the jeans from falling down and second, he would be checking the waistband for anything that could harm the police or Mr. Samuels. Mr. Wilkinson asked S.C. Loschan if he was looking down Mr. Samuels’ pants and S.C. Loschan denied doing this. He further denied ever pulling the jeans away from Mr. Samuels’ body to look down inside them. He testified he was not going to tell Mr. Wilkinson he did something he didn’t do. He did not believe he ever touched Mr. Samuels’ underwear and did not observe that being done on the video. He told Mr. Wilkinson it was not his job to look or go inside the underwear to check. S.C. Loschan testified a special constable does not do “detailed”[^3] or strip searches. S.C. Loschan knew that the arresting officers had requested a strip search and Acting Sgt. Parcells had approved it. This was done on the booking video. There was no need for him to do something that was not part of a frisk search and not something he was supposed to do. When Mr. Wilkinson asked if Mr. Samuels was wearing underwear, S.C. Loschan said he was because Mr. Samuels said he was. When Mr. Wilkinson asked if Mr. Samuels was wearing boxers, S.C. Loschan said he did not know.

[75] I found S.C. Loschan to be forthright and direct in his evidence. He did not attempt to embellish his evidence and did not become combative in cross, even when he was being closely cross-examined. I watched the three videos that captured S.C. Loschan’s frisk search of Mr. Samuels and it is my view his evidence of not looking down inside Mr. Samuels’ jeans and not pulling the waistband to be able to look inside Mr. Samuels jeans is supported and corroborated by what is on the video.

[76] Mr. Wilkinson relied on the case of R. v. Pilon, 2018 ONCA 959, where the Court set out a number of principles dealing with strip searches. The facts briefly in that case involved the police arresting an accused during the execution of a search warrant at a motel. The accused resisted being handcuffed and the officers believed he was trying to hide something. While conducting the search incident to arrest the officers saw he was wearing two pairs of shorts (similar to Mr. Samuels wearing two pairs of pants) and they removed the first pair. Interestingly, the Court did not find this action in Pilon amounted to a strip search. The officers discovered a roll of rolled up cash in the pocket of the inner pair of shorts. In continuing the search incident to arrest the officer decided to look inside the inner shorts, the accused was not wearing underwear (this was not known to the officers), and the officer saw the top of the accused buttocks and an elastic band attached to the accused’s penis. The officers were concerned he was trying to hide items and they were concerned about their safety and the accused’s safety. They asked if he had anything else, which he repeatedly denied. The sergeant authorized the officers to take the accused into the bathroom of the motel room to conduct a strip search, which consisted of pulling the waistband of the accused’s shorts away from his body so that the sergeant could view the accused’s genital area and he reached in and pulled out objects attached to the accused’s penis by an elastic band. The sergeant did not touch the accused’s penis, he had on surgical gloves, and he retrieved a pill bottle containing fentanyl patches and a ball of electrical tape with crack cocaine inside.

[77] This case addresses strip searches in the field and the need for exigent circumstances to exist to justify such searches. As I have found above, the frisk or pat down search incident to Mr. Samuels’ arrest at the scene (or in the field) did not amount to a strip search, and the frisk or pat down search conducted by S.C. Loschan also did not amount to a strip search. It is my view that there is no need to consider whether there were exigent circumstances when I have found that no strip search occurred. The factual circumstances in this case are completely different from the facts in Pilon. No officer observed Mr. Samuels’ buttocks or genitals, no officer did anything to attempt to observe Mr. Samuels’ buttocks or genitals by pulling the waistband of his jeans or underwear away from his body, Mr. Samuels was not only wearing two pairs of pants (joggers/track pants and jeans), he had on underwear and Mr. Samuels buttocks and/or genitals were never exposed. The evidence of the officers was unchallenged and the video from the scene and the three videos in the booking area corroborated their evidence respecting the manner these searches were conducted. In Pilon the Court found that strip searches had occurred in the field and the Crown had not led sufficient evidence to prove exigent circumstances; however, the evidence of the drugs was not excluded pursuant to s. 24(2).

[78] The Crown provided two cases dealing with similar issues to the issues raised in Mr. Samuels’ Charter application. R. v. Davis 2020 ONCA 748, where the Court indicated:

We have already concluded that the appellant's arrest was lawful. The search incident to arrest occurred at the scene of the arrest and involved an officer reaching into the appellant's waistband and pulling out a bag of contraband. The grounds for doing so arose from the uncontroverted fact that the appellant was seen placing that bag into his underwear just prior to his arrest. The trial judge found that this search involved nothing more than an officer "reaching into the waistband portion of the underwear and pulling out the drugs." No clothes were removed at the scene of the arrest. As the trial judge put it: "By all accounts it was a very brief single action."

In Mr. Samuels’ case, P.C. Tillsley observed the plastic bag sticking out of Mr. Samuels’ waistband of his underwear/track pants after Mr. Samuels told the officer he had a bag in the waistband of his underwear. He lifted Mr. Samuels’ shirt, and he grabbed the plastic sticking out and pulled the bag out. I accepted his evidence on this and found he did not reach into the waistband of the underwear to pull out the plastic bag after Mr. Samuels told him it was there. Although, in light of Davis, even if P.C. Tillsley had reached into the waistband, it is my view this would not amount to a strip search. Similarly, as in Davis no clothes were removed, no observations of Mr. Samuels’ private areas occurred and by all accounts it was a very brief single action.

[79] The other decision was R. v. McKanik, 2015 ONSC 2128, [2015] O.J. No. 2228 (SCJ, McCarthy J.), at paras. 124-125, where a roadside search involving the waistband of the accused’s pants and underwear being pulled out minimally and briefly, the search was minimally intrusive, no clothing was removed and was justified by the suspicion the accused was dealing in drugs, was a gang member and both for officer safety and concern for preservation of evidence justified this brief search. Authorization of senior officer not necessary. In light of Pilon, this brief search might be found to be a strip search today; however, in light of the s. 24(2) analysis in Pilon, I do not believe there would be exclusion of the evidence.

[80] A further case provided by the defence, R. v. Choi, 2021 BCCA 410, [2021] B.C.J. No. 2351 (C.A.) dealt with very similar circumstances to the present case, whether an officer visually inspected the waistband of the accused’s underwear and made these observations and findings, which I find are persuasive and I accept:

75 In this case, Cpl. Pollock rearranged Mr. Choi's clothing and visually inspected the waistband of his underwear, but not his genital or anal area, either covered or uncovered. There was nothing inherently humiliating or degrading about the search given its limited nature and the context in which it took place, namely, as part of a standard booking-in procedure at police cells. Nor was there anything to suggest that Mr. Choi found it humiliating or degrading for the officer to see the exposed waistband of his underwear. On the contrary, he was apparently and predictably unfazed by that aspect of the search. As the judge recognized, in modern times the waistband of underwear may be displayed in public in an overt and intentional way.

76 I agree with Crown counsel that the judge erred by employing an unduly literal interpretation of the Golden definition of a strip search disconnected from its underlying purpose and context. In my view, the reference in that definition to undergarments must be read in the context of the preceding phrase. To repeat, the definition of a strip search articulated in Golden is: "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments": at para. 47, emphasis added.

77 Undergarments may well cover private areas of a person's body, but they are not, in and of themselves, "a person's private areas". In my view, when the reasons in Golden are read as a whole, it is apparent that the visual inspection contemplated by the definition is an inspection of private areas of the body, whether those body areas are exposed or covered by undergarments. It follows that the salient consideration when a court determines whether a search falls within the definition of a strip search is the private nature of the body area in question, not the nature of a garment worn under an outer layer of clothing.

78 I also agree with Crown counsel that the cases upon which Mr. Choi relied below are distinguishable from this case. In R. v. Pilon, 2018 ONCA 959, the Court found that the arresting officer conducted two searches that constituted strip searches. In the first search, the officer looked inside the appellant's second pair of shorts, discovered he was not wearing underwear and observed the top of his buttocks and an elastic band attached to his penis. In the second, the officer pulled back the waistband of the appellant's shorts in an effort to visually inspect his genital area. The targeted area of the appellant's body for inspection in both searches was inherently private and, accordingly, the Court characterized the conduct as minimally intrusive strip searches. Similarly, in R. v. Byfield, 2020 ONCA 515, an arresting officer reached into the appellant's underwear and retrieved a package of cocaine from his groin, which the Court found was a strip search because, while the appellant's clothes were not removed, they were rearranged and his groin area was "inspected".

79 The important point for present purposes is that the searches in both Pilon and Byfield pertained to private areas of the body of the arrestee. Neither concerned a visual inspection of a non-private area of the body covered by an undergarment. In contrast, in this case, Cpl. Pollock intentionally limited his visual inspection of Mr. Choi's body to his waistline area, which is not a private area. As I have explained, the elasticized waistband of his underwear inspected by Cpl. Pollock covered only this area of the body.

80 In my view, the judge made a clear and determinative error in concluding that the search conducted by Cpl. Pollock was a strip search as defined in Golden.

(Emphasis added)

[81] At no time did P.C. Tillsley, P.C. Wilson or S.C. Loschan in conducting the frisk search incident to Mr. Samuels’ arrest at the scene or the frisk search conducted in the booking area of 17 Division, remove or re-arrange any clothing of Mr. Samuels such that a visual inspection of a private area, namely buttocks or genitals, of Mr. Samuels’ body occurred. It is my view the brief single paragraph in Davis is more fully expounded and explained by the British Columbia Court of Appeal in Choi and the two decisions are basically setting out the same principle. As a result, I find the searches conducted at the scene and in the main area of the booking hall were not strip searches and Mr. Samuels’ s. 8 Charter rights were not breached.

E. Was the strip search authorized by Acting Sgt. Parcells and conducted by P.C. Tillsley and P.C. Wilson in a private room at 17 Division a breach of Mr. Samuels’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?

[82] When P.C. Tillsley first arrived with P.C. Wilson and Mr. Samuels he went and spoke to Acting Sgt. Parcells to determine if he was ready to do the booking and to advise him, he would be requesting authorization to strip search Mr. Samuels in a private room after he completed the booking process. He advised Acting Sgt. Parcells at that time the circumstances of Mr. Samuels arrest and what had occurred, which provided him reasonable and probable grounds to believe a strip search was necessary.

[83] During the booking by Acting Sgt. Parcells, he asked P.C. Tillsley to articulate his grounds on the video/audio, which I have set out above in paragraph 26. I will not repeat that conversation, which included Mr. Samuels, as it is set out in its entirety.

[84] At 2:17:17 p.m., Mr. Samuels was brought into the private room by P.C. Tillsley and P.C. Wilson for a strip search that was approved by Acting Sgt. Parcells. The door was closed. This search was audio recorded but not video recorded. Mr. Samuels was instructed to remove his shirt and give it to the officers, who checked it. The officers did not touch or frisk, in any way, Mr. Samuels in the private room. He was then asked to put his shirt back on. He was asked to remove his jeans and socks, which he did. Again, the officers did not touch or frisk him, in any way, Mr. Samuels after he removed those items of clothing and gave them to the officers, who checked them. He was then instructed to put jeans and socks back on. At 2:18:55 p.m. the strip search was completed, and he was returned to the booking hall, and he sat on a bench. The strip search in the private room took a minute and 38 seconds, which was exceptionally brief. He was never fully unclothed and was not required to stand before the two officers naked, his buttocks and genitals were always clothed, initially by his jeans and underwear and then just his underwear. There was no cavity search undertaken. There was nothing more invasive than a visual inspection of Mr. Samuels based on the officers’ evidence and the audio. Further, I did not hear any evidence to contradict that. They handled and inspected the clothing he removed and found no contraband of any kind. In my view the strip search performed by the officers was to make sure Mr. Samuels had no other items concealed under or in his shirt or jeans or socks.

[85] Although strip searches can be degrading and humiliating in and of themselves, there is no argument here that the particular method of carrying out this strip search was unreasonable. It is the mere fact that one was conducted that forms the basis of this s. 8 breach allegation. Mr. Wilkinson argued that because of the searches that had already occurred at the scene and in the booking hall there was no need to request or approve a strip search in a private room at the police station, the strip search was completely unnecessary, it should not have been requested or approved and as a result Mr. Samuels’ s. 8 Charter rights were breached.

[86] I do not agree with Mr. Wilkinson’s argument. It is not essential that more drugs must be found to justify a strip search approved by the booking sergeant and carried out by two officers. All that is necessary is there be reasonable and probable grounds to conduct this level of search. The fact Mr. Samuels told Acting Sgt. Parcells and P.C. Tillsley he did not have any other drugs or contraband on him also does not end the matter, as his comment does not have to be accepted by the police. Given the circumstances of this case, the fact the officers observed a drug transaction between Mr. Samuels and Mr. Eyre, some of the drugs were in very small individually wrapped baggies and the fact he told P.C. Tillsley he had another plastic bag with drugs in the waistband of his underwear and all this information was given to Acting Sgt. Parcells to assist in his decision as the supervising officer if it was appropriate to give approval, it is my view the request and approval were based on the test required by Golden and this strip search was completely Charter compliant. Frankly, in my view it was necessary to request a strip search and for it to be approved, having regard to the totality of the circumstances presented. In my view it would have been negligent for the arresting officer, with the knowledge and information he had, not to make the request for a strip search and there was more than sufficient evidence to justify Acting Sgt. Parcell’s approval. Further, it is my view the strip search was very brief and with limited intrusiveness to Mr. Samuels’ privacy. As a result, there was no breach of Mr. Samuels’ s. 8 Charter rights as a result of the strip search that was approved by Acting Sgt. Parcells and performed by P.C. Tillsley and P.C. Wilson in the private room.

F. Did the delay in Mr. Samuels speaking to his lawyer amount to a breach of his [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?

[87] Mr. Samuels upon being read his right to counsel at 13:34 advised he wanted to call a lawyer at Hicks, Block, Adams. He re-iterated this request when he was questioned by Acting Sgt. Parcells during his booking, which commenced at 14:06:20.

[88] After Mr. Samuels’ booking and frisk search by S.C. Loschan was completed, he was brought to the private room at 14:17:17 for the strip search authorized by Acting Sgt. Parcells. This was completed at 2:18:55 and he was brought to a bench across from the booking desk. Mr. Samuels requested one of his phones to get phone numbers for sureties, which was accommodated. He was brought to cells after this was completed.

[89] At 14:36 P.C. Tillsley looked up Hicks, Block, Adams on the computer in the SOCO room and found a lawyer named Kristen Bailey, who he called and left a message. P.C. Tillsley testified Mr. Samuels had provided the name, Kristen, to him in P.C. Wilson’s police cruiser on the drive from the scene to 17 Division. There was no decision by the police involved in Mr. Samuels’ arrest to delay for any period of time his access to counsel. The first thing done by P.C. Tillsley upon the completion of the strip search and Mr. Samuels’ booking was to look up the law firm’s website, find the lawyer requested and call that lawyer, which is what he did, and he left a message.

[90] P.C. Tillsley was involved in photographing and logging the items seized from Mr. Samuels during his arrest and search incident to arrest. As a result of seeing the different quantities of drugs and what he believed those suspected drugs to be, he believed Mr. Samuels’ jeopardy had changed and he needed to advise him of these new charges and re-read his right to counsel.

[91] After advising Mr. Samuels at 15:29 in Cell 5 of the additional charges he would be facing (trafficking in a Schedule 1 substance, possession of cocaine for the purpose of trafficking; possession of crystal Methamphetamine for the purpose of trafficking; possession of fentanyl for the purpose of trafficking and breach of release order; not to be in possession of illicit substances and re-reading him the right to counsel, Mr. Samuels now advised the lawyer he wanted to be contacted was Kathryn Dora. P.C. Tillsley once again looked up the website of the law firm and discovered there was a lawyer named Kathryn Doyle there. He called the firm and asked to speak to Kathryn Doyle regarding Mr. Samuels. The receptionist advised him that she was not available but put him through to her associate, Tamara Davidson, who he spoke to. He then put this lawyer through to the cells so she could speak in private with Mr. Samuels. This occurred at 15:34.

[92] After completing this P.C. Tillsley became involved in processing the drugs he seized from Mr. Samuels in terms of weighing them, preparing them for storage and sending samples for analysis. He had no further dealings with Mr. Samuels.

[93] It was Mr. Wilkinson’s submission that the delay from Mr. Samuel’s requesting counsel (13:34) to when he was finally put into contact with counsel (15:34) – a period of two hours – was contrary to the Ontario Court of Appeal decision in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.) and Justice Di Luca’s decision in R. v. Wu, 2017 ONSC 1003, [2017] O.J. No. 653 (SCJ). Section 10(b) guarantees anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right.”

[94] Section 10(b) requires the police to advise a detained person of the right to speak with counsel without delay and if the detained person requests to speak to counsel, the police must immediately provide the detainee with a reasonable opportunity to do that (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38 and 42; and R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-192). The Court in Rover indicated that s. 10(b) jurisprudence recognized that specific circumstances may justify some delay in providing a detainee access to counsel and referenced police safety, public safety or the preservation of evidence.

[95] Based on the totality of the evidence presented during Mr. Samuels’ trial and the blended hearing, it is my view the police did not deliberately delay Mr. Samuels’ access to counsel or make a decision based on police policy or protocols to delay contacting counsel if there are concerns evidence with be destroyed. In this case as soon as the booking process was completed, P.C. Tillsley looked up the website for Hicks, Block, Adams and he contacted Kristen Bailey, a lawyer with that firm that he believed Mr. Samuels had given him the first name, by telephoning her and leaving a message for her to call 17 Division respecting Mr. Samuels who was in custody and under arrest. It is my view there was no delay in implementing Mr. Samuels’ right to counsel.

[96] Further, when P.C. Tillsley recognized that Mr. Samuels’ jeopardy had changed, in that the police were going to be laying additional charges because of the different quantities and type of drugs seized – two additional charges of possession of a Schedule 1 substance for the purpose of trafficking and a breach of release order, the term not to possess illicit substances under the CDSA, he went to Cell 5 and advised Mr. Samuels of this and re-read his right to counsel. Mr. Samuels then indicated his lawyer’s name was Kathryn Dora. P.C. Tillsley immediately looked up the website of the law firm again and found a lawyer, whose name was Kathryn Doyle, and he called the firm, spoke to the receptionist, who advised Ms. Doyle was not available but she put him in touch with an associate, Tamara Davidson. After speaking to this lawyer, P.C. Tillsley put her through to the cells to facilitate a private call with Mr. Samuels, which took place

[97] There was no deliberate delay as in the Rover case (where the detainee was not put in touch with counsel until six hours after his arrest because the police were conducting a search of a house and their policy was to delay implementation of right to counsel until the search was completed) or in Wu (the detainee was not put into contact with counsel for 11 hours after his arrest for similar reasons). Both cases involved a deliberate action by the police in delaying contact with the detainee’s lawyer. It is my view the circumstances in this case leading to a delay, which only amounted to an hour given the search incident to arrest at the scene and the booking at 17 Division took an hour (13:34 to 14:36). These steps took this amount of time because of the numerous items discovered on Mr. Samuels, some removed at the scene during the search incident to arrest and further personal items that were removed at the station before he could be lodged in cells. P.C. Tillsley left a message for the lawyer he believed to be Mr. Samuels’ counsel at 14:36. The next 50 minutes was as a result of no return call being made by counsel and P.C. Tillsley being involved in photographing and cataloging the items (both drugs and personal property) seized from Mr. Samuels. P.C. Tillsley recognized Mr. Samuels’ jeopardy had changed and he re-read Mr. Samuels right to counsel and Mr. Samuels advised a different name of lawyer, Kathryn Dora, which was also not his lawyer’s correct name. When P.C. Tillsley immediately contacted the firm, a lawyer was available to speak to Mr. Samuels and he was put in contact with an associate of his lawyer, who he spoke to.

[98] It is my view based on the totality of the circumstances surrounding P.C. Tillsley’s implementing Mr. Samuels’ right to counsel, there was no breach of his s. 10(b) Charter rights.

[99] Even if this two-hour period could be found to be a breach of Mr. Samuels’ s. 10(b) Charter rights, which I do not find, it is my view the conduct of the police cannot be viewed as being a serious breach or a deliberate decision to delay Mr. Samuels speaking to his lawyer. In my view there was no bad faith or flagrant disregard for Mr. Samuels’ Charter rights, exercised by P.C. Tillsley. Further, the impact on his Charter-protected interests was minimal as the police did not attempt to interview him and he did not provide any statements to the police. Lastly, the drugs observed in Mr. Samuels’ hand during the drug transaction, found in his possession during his arrest and seized were reliable and relevant evidence to the Crown's prosecution of serious offences. Its admission would better serve the truth-seeking function of the criminal trial process than its exclusion. The admission of the evidence would not bring the administration of justice into disrepute (see R. v. Tim, supra, at paras. 82-100).

Conclusion

[100] For the above reasons I would dismiss the Charter applications to exclude the Schedule 1 substances discovered on Mr. Samuels person. All Schedule 1 substances seized by P.C. Tillsley are therefore admitted on this trial.

[101] Therefore, it is my view based on the totality of the evidence led during the trial and the blended hearing that the only reasonable inference available is that Michael Samuels was in possession of all of the Schedule 1 substances observed and seized by P.C. Tillsley, shown in Exhibit 7, Photo 15. As I have found, P.C. Tillsley and P.C. Marriott first observed Mr. Samuels with a plastic bag containing numerous individually wrapped baggies from which he poured three into the hand of Shane Eyre. Mr. Eyre was seen to put something into the hand of Mr. Samuels, which P.C. Tillsley later saw was Canadian currency. This proves beyond a reasonable doubt his guilt on the charge of trafficking in a Schedule 1 substance, namely cocaine. P.C. Tillsley then grabbed Mr. Samuels’ backpack, was able to stop him from escaping on his bicycle and told him he was under arrest for trafficking and possession for the purpose of trafficking in a Schedule 1 substance. P.C. Tillsley then asked Mr. Samuels if he had anything else that was pointy or could prick or harm him, did he have anything else on him and Mr. Samuels told him he had another plastic bag in the waistband of his underwear. P.C. Tillsley lifted his shirt and saw the top of the plastic bag sticking out of the waistband, which he grabbed and pulled out. This plastic bag contained other plastic bags in it containing what appearing to be illicit substances.

[102] P.C. Tillsley testified more of the small individually wrapped baggies had fallen from the larger plastic bag to the pavement in front of the white car parked in the laneway. Mr. Samuels must have dropped the larger bag with small individually wrapped baggies onto the pavement when P.C. Tillsley handcuffed him to the rear, as Mr. Samuels no longer had this in his right hand. P.C. Tillsley moved Mr. Samuels over to the metal bar to sit down. (Mr. Samuels is seen in the video at different periods of time sitting on this metal bar, which created a walkway beside the Michael Starr Building, separating it from the laneway.) As P.C. Tillsley was doing this, he is captured on Sgt. Kerr’s video with another plastic bag with a bag containing a white substance and a bag with a darker substance gripped in his hand together with his black rubber gloves. It is difficult to see what else might be in this plastic bag, which, based on P.C. Tillsley’s evidence, which I have accepted, was the plastic bag he pulled out of Mr. Samuels’ waistband. P.C. Tillsley testified this bag had multiple things (other bags with substances) in it. P.C. Tillsley turned Mr. Samuels over to P.C. Wilson who had just arrived on scene. P.C. Wilson asked if P.C. Tillsley had started the search incident to arrest and he said, “No.” P.C. Tillsley can also be heard to be telling P.C. Wilson he is going to deal with these motioning to something on the pavement in front of the white car with his arm, which I find were the drugs first seen by P.C. Tillsley and P.C. Wilson. These are the small individually wrapped baggies and the larger plastic bag containing more individually wrapped baggies. These items can be seen in the video on the pavement. When P.C. Tillsley walked over to this area he still had the plastic bag with a white substance and darker substance gripped in his hand. I find this plastic bag with drugs in P.C. Tillsley right hand is the plastic bag Mr. Samuels told P.C. Tillsley was in the waistband of his underwear, which P.C. Tillsley pulled out.

[103] P.C. Tillsley can then be seen squatting down and picking up something from the pavement in front of the white car. P.C. Piorkowski is standing close to where this is occurring and is watching P.C. Tillsley. P.C. Tillsley left this area and went back to where Mr. Samuels was standing with P.C. Wilson, who is conducting the search incident to arrest, and he advised Mr. Samuels what his charges would be and read him the right to counsel and caution. P.C. Piorkowski can be seen continuing to stand in front of the white car, where there are plastic bags on its front hood. Later P.C. Piorkowski can be seen tying up these same plastic bags, which he testifies contain drugs, and he is maintaining continuity over. Based on the totality of the evidence and the sequence of events I have just described; it is my view that the drugs in the plastic bags that can be seen on the hood of the white car were put there by P.C. Tillsley. P.C. Piorkowski testified he was given a brown paper bag, in which he put all of these drugs and which he ultimately gave to P.C. Tillsley as P.C. Tillsley got into the front passenger seat of P.C. Wilson’s police cruiser when Mr. Samuels was transported back to 17 Division.

[104] I find the only reasonable inference is that the plastic bags with drugs in them are the drugs seized by P.C. Tillsley from Mr. Samuels, ultimately placed on the hood of the white car by P.C. Tillsley, packed up by P.C. Piorkowski and ultimately brought by P.C. Tillsley to 17 Division where they were removed from the brown paper bag in the SOCO room and photographed (Exhibit 7, Photo 15). All of these drugs originally were in the possession of Mr. Samuels until some fell to the ground when he was arrested, and the remainder were pulled out of Mr. Samuels’ waistband of his underwear by the top of the plastic bag by P.C. Tillsley. The defence has admitted the expert report, which concluded that the quantity of each drug together with the large amounts of Canadian currency and digital scales and numerous cell phones proved beyond a reasonable doubt these drugs were possessed for the purpose of trafficking. The defence also conceded the analysis and continuity of the drugs found. In my view it would be complete speculation to suggest one of the police officers found some quantity of other drugs in this laneway beside the Michael Starr Building that had nothing to do with Michael Samuels. It is my view the only reasonable inference available based on the totality of the evidence is that Michael Samuels is guilty of the two charges alleging he possessed for the purpose of trafficking quantities of Schedule 1 substances; namely, Cocaine and Crystal Methamphetamine.

[105] Further, Mr. Samuels providing three small individually wrapped baggies to Mr. Eyre and Mr. Eyre providing Canadian currency in exchange to Mr. Samuels, together with the fact that three similarly packaged small individually wrapped baggies were found by P.C. Marriott on Mr. Eyre, proves beyond a reasonable doubt Mr. Samuels trafficked in a Schedule 1 substance, namely cocaine, to Mr. Eyre. (R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, at para. 30.)

[106] Further, his release order, which was admitted, indicated he was not to be in possession of illicit substances under the CDSA and as a result this charge has been proven beyond a reasonable doubt.

[107] There will be convictions on the four remaining charges before the court.

Released: June 28, 2023

Signed: Justice Peter C. West

[^1]: Body worn cameras, at the time of these offences, were not worn and issued to all police officers in every Durham Regional Police division. The evidence revealed that uniformed officers at 17 Division had not been issued body worn cameras at this time.

[^2]: The defence filed Applicant’s Application Record, which contained (Tab 1) police notebook of P.C. Tillsley, (Tabs 2 and 3) Identical copies of Arrest Report of P.C. Tillsley. The Application Record also contains the police notebooks and Arrest Report of each of the officers involved in Mr. Samuels’ arrest and investigation.

[^3]: Mr. Wilkinson questioned S.C. Loschan about his use of this term, which the officer testified he believed was another term for strip search. I have heard this term used in a number of different jurisdictions to describe a strip search. S.C. Loschan also indicated he had heard the term “level 3” search, which Mr. Wilkinson said referred to a strip search that involved a cavity search but S.C. Loschan testified he did not know what a level 3 search was.