ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 10 813
DATE: 20120905

B E T W E E N:

HER MAJESTY THE QUEEN

S. Aujla, for the Crown

• and -

ASHLEY EBANKS

J. Hershberg, for the Defence

HEARD: August 14, 2012

REASONS FOR SENTENCE

Baltman J.

Overview

[ 1 ] Ms. Ebanks has been convicted by a jury of importing 406 grams of cocaine. Her sole defence at trial was that of duress, which by its verdict the jury has rejected.

[ 2 ] She is now before me for sentencing. In addition to the usual factors that a court must consider on sentencing, this case poses two issues:

a. Should there be a reduction in sentence to account for any compulsion, short of duress?

b. Should there be a reduction in sentence to reflect alleged police wrongdoing in conducting multiple strip searches?

Positions of Crown and Defence:

[ 3 ] The Crown asserts that the proper sentence is 3 years imprisonment; however, should the court mitigate to reflect the alleged duress and police misconduct, the Crown suggests a reduction to 2.5 years imprisonment.

[ 4 ] The Defence asserts that if there are no extenuating factors at play, the proper sentence is two years imprisonment, whereas if the court factors in any of the arguably mitigating features – including compulsion, repeated strip searches, and the offender’s personal circumstances – the fair result is a conditional sentence, its length and terms to reflect which of the extenuating circumstances apply.

The Facts

(a) Circumstances of the Offence

[ 5 ] Ms. Ebanks arrived at Pearson airport from Jamaica on January 8, 2010, at approximately 5 p.m. She was referred for a secondary examination, where she was questioned. A positive ion scan and various other indicators led to a detention pursuant to s. 98 of the Customs Act , which permits an officer to search a suspect whom she “suspects on reasonable grounds” is carrying contraband. Customs officers suspected she had ingested narcotics.

[ 6 ] The detention commenced at 7:20 p.m., when Ms. Ebanks was told she was being held pursuant to s. 98 and given her rights to counsel. She was then strip searched and brought to a “loo” room, which contains a special toilet that permits officers to collect bowel excretions as evidence.

[ 7 ] At 8:35 a.m. on January 9 th the offender admitted she had ingested narcotics. She was immediately arrested and read her rights to counsel. Shortly thereafter she was observed trying to remove a vaginal insert, which contained cocaine. She also stated that she had swallowed numerous pellets. At approximately 9:00 a.m. Ms. Ebanks spoke with duty counsel; at roughly 12 noon on January 9 th she was transported to the RCMP section of the airport, whereupon the RCMP assumed custody of her and demanded a second strip search. She was then transported to the hospital, where x-rays confirmed numerous pellets inside her.

[ 8 ] Ms. Ebanks was next transported to Terminal 1 cells, which also contain a special loo. Between 5:30 p.m. on January 9 th and 2:37 a.m. on January 10 th she produced 22 pellets of cocaine. The combined weight of the pellets and vaginal insert was 406 grams. Later that day she was brought to the Davis Courthouse for a bail hearing. Ms. Ebanks claims she underwent a third strip search at the courthouse; the Crown vigorously denies that a third strip search occurred.

(b) Circumstances of the Offender

[ 9 ] Ms. Ebanks is 25 years old, and has no prior criminal record. She is single with no children. Her mother died when she was 3, and her father, with whom she lived until she was 9, was physically and emotionally abusive. Fortunately, her maternal aunt and uncle obtained custody of her when she was 9 and raised her in a loving and supportive home. Despite a turbulent childhood and a sexual assault at the hands of a classmate during her early teens, she appeared to be living a stable and productive life until this matter arose.

[ 10 ] At the time of this offence she had nearly completed a college degree as a personal support worker, and has in fact since completed that degree. As she will now have a criminal record she will likely be disqualified from working in that field, and therefore is considering other employment options. In the two years since this charge was laid she has been doing occasional volunteer work and upgrading her IT skills.

(c) Evidence of Compulsion

[ 11 ] Up to this point the history I have recited is essentially uncontradicted. At trial Ms. Ebanks testified about how her visit to Jamaica in December 2010 unexpectedly placed her in the hands of men who used her to bring cocaine into Canada. Much of her evidence was disputed by the Crown and, given the verdict, at least to some degree by the jury as well. I recite it here as background for her submission that although the jury rejected duress as a defence, I should nonetheless reduce the sentence to account for any compulsion or pressure that she was under that falls short of the legal requirements for duress.

[ 12 ] Ms. Ebanks testified that while visiting her family in Jamaica, she was reunited with her cousin, who lives there. On the day of her departure, when he was supposedly going to drive her to the airport, he instead lured her into a car where his associates told her they wanted her to bring drugs back to Canada. When she refused they struck her and threatened her with a gun. They then forced her to swallow numerous pellets and stuff a dildo into her vagina. They drove her to the airport and told her that the Jamaican police were on their payroll and they would have people watching her on the plane. They also told her they had connections in Toronto who would be watching her, and that if she betrayed them they would kill her and/or her family. She testified that she believed them, in part because she thought that the Jamaican police were corrupt. She also knew that they knew where she and her aunt lived in Toronto.

[ 13 ] Because she believed they could and would follow through on their threats she did not say anything to anyone in authority, either at the airport in Jamaica, or on the plane. After she returned to Toronto and was going through customs at Pearson, she did not ask for help from the customs officers or later from the RCMP, because she still believed the men in Jamaica had people watching her. After she was released from custody she got a phone call warning her not to say anything about who gave her the drugs. Nonetheless, she decided to tell the “truth” at trial because she does not want to live the rest of her life in terror of these men.

Compulsion short of duress

[ 14 ] As noted, the jury rejected the offender’s defence of duress. However, compulsion that falls short of establishing duress can be taken into account to mitigate sentence: R. v. Valentini (1999, Ont. C.A.), para. 107; R. v. Campbell 2010 ONSC 6973 , para. 32 ; R. v. Holder , 1998 14962 (ON SC) , [1998] O.J. No. 5102 (S.C.), para. 30 . For compulsion to be considered a mitigating factor, the offender must satisfy the court on the balance of probabilities that she was threatened: Holder , para. 30 .

[ 15 ] It is impossible to tell from the jury’s verdict on what basis they rejected the defence of duress. It may be that they accepted the Crown’s submission that the defence had been contrived at the last minute out of desperation, or they may have found that there was duress exercised on the accused but she should have availed herself of a safe avenue of escape. In these circumstances, I must independently determine whether there was any degree of duress exercised on the accused: Holder , paras. 26-7.

[ 16 ] In my view, Ms. Ebanks was not a credible witness at trial. I find it highly improbable that she was threatened in the way she claims, for several reasons. First, her account of her activities and travels while she was in Jamaica was inconsistent and illogical. Second, she gave contradictory evidence about her alleged medical problems while she was in Jamaica, and how Imodium came to be in her luggage. Third, according to her evidence, she disappeared for well over 24 hours before she was scheduled to depart Jamaica, yet none of her relatives there were alarmed.

[ 17 ] I suspect that Ms. Ebanks did not orchestrate this crime on her own. She likely had partners or cohorts of some kind, who were probably not of outstanding moral character. But I am not persuaded on the balance of probabilities that she acted under any degree of external compulsion. I believe that while others may have encouraged or persuaded Ms. Ebanks to participate, she was there willingly, for personal gain.

Multiple strip searches

[ 18 ] There are two issues to consider here. First, how many strip searches were conducted? Second, what if any effect should any repeated searches have on sentence?

[ 19 ] On the first issue, both parties agree there were at least two strip searches, the first when Ms. Ebanks was taken into custody by the Canadian Border Services Agency (CBSA) and the second, after her confession and subsequent arrest, when she was transferred to the custody of the RCMP. However, as noted above, Ms. Ebanks alleges there was a third strip search when she was brought to the Davis Courthouse for her bail hearing.

[ 20 ] I am not satisfied on the balance of probabilities that the third search occurred. Ms. Ebanks’ evidence was not persuasive. She stated that the strip search occurred in a “cell”, with open “bars”, where conceivably anyone passing by could look in. This seems highly unlikely given that the cells are typically video monitored at all times. Moreover, although the record keeping of the special constables in charge that day leaves much to be desired, and cannot conclusively rule out the possibility that she was strip searched, given that strip searches normally require special authorization and there is no mention of Ms. Ebanks being searched in any of the logs maintained by the sole female officer present that day or her supervisor, I find it unlikely that one occurred.

[ 21 ] That leaves me to consider what if any mitigating effect the second strip search should have. The Crown raised a preliminary objection to my even having the “jurisdiction” to consider this issue. Mr. Aujla argued that this application should have been launched as a pre-trial or mid-trial motion, and that for me to hear it now would be to “grant post conviction Charter relief not argued until after a guilty verdict.”

[ 22 ] This submission is misguided, in numerous respects. First, whether the impugned conduct amounts to a Charter breach, or something less than that, is irrelevant to the timing of this application; Mr. Hershberg is not seeking a stay, or even an exclusion of evidence, and therefore had no reason to bring the application earlier. In fact, had he done so, his argument would have been that although his client has pled not guilty, in case she is convicted she merits a reduction in sentence. In other words, if the Crown is right, Mr. Hershberg should have asked for an anticipatory ruling, something which is not only improper but a complete waste of time and resources.

[ 23 ] Second, the timing of this application does not prejudice the Crown in any way. Mr. Hershberg gave proper notice of this application in advance of the sentencing hearing, including his intention to call evidence on the question of whether a third strip search occurred. The Crown called evidence in response. On the issue of the second strip search, while both parties were content to rely on the evidence adduced at trial, nothing prohibited the Crown from calling further evidence at the sentencing hearing regarding the justification for and circumstances surrounding the second search.

[ 24 ] Third, this application is precisely what is contemplated by s. 724(3) of the Criminal Code , which provides that “where there is a dispute with respect to any fact that is relevant to the determination of a sentence”, the party wishing to rely on that fact has the burden of proving it. There should be no question that the impugned conduct may , depending on a number of factors, be relevant to sentencing, irrespective of whether it amounts to a Charter breach: in R. v. Nasogaluak , [2010] S.C.R. 206, the Supreme Court held that a sentencing judge may consider police violence or other misconduct when formulating a fit and proportionate sentence “even when the incidents complained of do not rise to the level of a Charter breach.” (para. 53)

[ 25 ] For all those reasons the Crown’s preliminary objection regarding the limits of my jurisdiction cannot be correct. It now rests for me to consider what effect, if any, the second strip search should have on sentence.

1. Factual Background

[ 26 ] The context is as follows. The offender was initially detained at approximately 5:00 p.m. on January 8 th on the basis that she had ingested narcotics. Shortly thereafter she was strip searched by two female border officers; that was the first search, and the defence does not dispute its legality.

[ 27 ] The offender was then brought to a “loo” room, which contains a “dry” toilet that collects any excretions. Throughout the evening and overnight she was kept awake and encouraged repeatedly to use the toilet in the hope that she would excrete any contraband she had swallowed. Food and beverages were provided to stimulate her bowels.

[ 28 ] Throughout this vigil the offender was constantly under the watch of two female officers. It was made clear to her that she would not be released until she passed a clear stool sample. She made numerous attempts to defecate, and each time, in accordance with their usual policy, the officers remained within a few feet of her to insure that any excretions were promptly collected for examination. Practically speaking, that means that several times throughout the night two officers within arm’s reach watched Ms. Ebanks lower her pants and underwear, squat over the toilet, attempt to defecate, and then pull her clothes back on.

[ 29 ] There were two shift changes that occurred throughout the vigil. The last one took place at approximately 7:15 a.m. on January 9 th , when officers McIvor and Hopkins came on duty. By this point the offender had been in custody for approximately 14 hours. Hopkins impressed upon the offender the risks associated with prolonged ingestion of narcotics. Approximately an hour later the offender experienced abdominal pain and was brought to the toilet, where she removed a vaginal insert. Both McIvor and Hopkins agreed she made no attempt to hide what she was doing.

[ 30 ] The offender then admitted that she also swallowed numerous pellets of contraband. She was arrested and the RCMP were contacted. At approximately 12 noon on January 9 th RCMP Officer Scott Thompson arrived and assumed custody of the offender. He required that she undergo a second strip search. It is this search that the offender maintains was unconstitutional.

[ 31 ] As no female RCMP officer was available, BSO McIvor conducted the search “on behalf of” the RCMP. Thompson testified that despite being told that the offender had already been strip searched by the CBSA, he required a second strip search. He explained that it was “standard policy...a security precaution to ensure that nothing was missed by CBSA” because it is a “different agency”. He realized that McIvor, who was performing the search on his behalf, was from the CBSA – the same agency that performed the first search - but remained “unsure if a different BSO or border service officer had missed something that she may have had in her possession...”

[ 32 ] McIvor did not question the propriety of the second search or hesitate to perform it, even though she knew that one of her colleagues had already done an identical search within the last 24 hours. She acknowledged that at no time during her detention did the offender attempt to conceal anything. And at no point since the first strip search did she have access to a weapon or any other contraband.

[ 33 ] McIvor explained, however, that “each agency has the policy to strip search [because] things go missed. Not all officers search at the same calibre. It is an officer safety issue and that’s why each agency has their protocol to strip search.” She recalled an occasion where she had strip searched someone who had previously been searched by a different agency and retrieved razor blades that were sewn into the prisoner’s pants. She agreed she had no indication that the strip search done by her colleague hours earlier was insufficient.

2. The Legal Framework

[ 34 ] The authority to conduct a strip search incidental to a lawful arrest was addressed in R. v. Golden (2001), 2001 SCC 83 , 159 C.C.C.(3d) 449, para. 90 , where a majority of the Supreme Court held:

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

[emphasis added]

[ 35 ] The Court in Golden also held that the state cannot conduct warrantless strip searches unless they are incidental to a lawful arrest and the police have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. In light of the serious infringement of privacy and personal dignity inherent in a strip search, such searches are only valid when conducted for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest: paras. 98-9. See also R. v. Ferguson , [2005] O.J. No. 182 (S.C.), paras. 26-50 ;

[ 36 ] The state has the authority to strip search persons entering the prison population, as recognized in Golden , paras 96-7 . However, the Supreme Court also adopted the reasoning of the Ontario Court of Justice in R. v. Coulter , [2000] O.J. No. 3452 , which held at paras. 26-27 that this power exists only in the context of persons entering the general prison population. The power does not extend to individuals being held for a short time in police cells who will not be mingling with the general prison population. See also R. v. A.B. , [2003] O.J. No. 2010 (S.C.), per Durno J., paras. 21-2.

[ 37 ] Under s.98 of the Customs Act , a customs officer may search a traveller provided the officer suspects on reasonable grounds that contraband has been “secreted on or about his person” and that the search occurs “within a reasonable time” of the traveller’s arrival in Canada. The phrase “secreted on or about his person” authorizes customs officers to search for prohibited material not only on or about the surface of the traveller’s body, but also secreted or concealed within the traveller’s body.

[ 38 ] Courts have held that strip searches of travellers carried out under s.98 of the Customs Act do not violate s. 8 of the Charter , recognizing border crossings occur in a unique context and that people do not expect to be able to cross international borders free from scrutiny: R. v. Monney , [1999] 1 S.C.R. 652; R. v. Simmons , [1997] 1 S.C.R. 607. Similarly, the actions of customs officers in conducting a “bedpan vigil” like the one that occurred here have been found to be a reasonable search for the purposes of s. 8. As the court stated in Monney , paras 45 & 48 :

An individual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily waste and which is expelled from the body in the process of allowing nature to take its course...[S]ubjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.

[ 39 ] That said, neither counsel was able to produce any authority dealing with the legitimacy of second searches in the importing context. As noted above, Thompson justified the second search in this case on the basis of “policy”, in particular to insure officer safety in the event that the previous agency failed to adequately conduct the first search.

[ 40 ] The courts have been clear that police cannot hide behind “policy” to justify unnecessary searches. Nor can they rely upon the “possibility” of finding a weapon or drugs. As set out at paras. 94-5 in Golden :

Whether searching for evidence or for weapons , the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search...Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees , whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter...a “routine” strip search carried out in good faith and without violence will also violate s.8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.

[ 41 ] In R. v. Flintoff (1998), 126 C.C.C. (3d) 321 the Ontario Court of Appeal was very critical of a compulsory policy of Durham Regional Police that every person brought into the police station in custody must be strip searched, regardless of the particular circumstances. Similarly, in R. v. Clarke , [2003] O.J. No. 3884 (S.C.), where one of the applicants was strip searched three times, Ferrier J. concluded that the latter two searches were unjustified, as they were unrelated to the reasons for the arrests and the Crown failed to demonstrate why the searches were necessary; paras. 107-110. Finally, in R. v. A.B. supra, Durno J. observed at paras. 30-31 that there should be no “routine” second strip search of prisoners being transported from police divisions to court cells.

3. Analysis

[ 42 ] On the facts of this case, I see no reasonable grounds for Thompson to subject the offender to a second strip search. Golden makes it clear that neither “policy” nor the “mere possibility” that someone is concealing evidence or weapons is sufficient to justify a strip search. That is particularly the case where, as here, the prisoner had already undergone a strip search and had no opportunity to gain access to any contraband while in custody.

[ 43 ] That the second search was conducted by an officer from the same agency who did the first search is particularly troubling. I find it significant that McIvor did not feel the need to conduct a second strip search for her own protection when she took over the custody of Ms. Ebanks, but yet a few hours later, when she transferred Ms. Ebanks to Thompson, justified it as necessary for “officer safety”. This clearly illustrates, in my view, the falsity of any attempt to justify the second search.

[ 44 ] The Crown suggested that the second search was legitimate because once the offender admitted having swallowed the pellets, it followed that she would be taken to a hospital where she would be in contact with medical staff and the general public, and any weapon in her possession might pose a danger. This ignores the reality of what had occurred over the previous 20 hours, during which she had been under constant supervision by two female officers who were within feet of her at all times. The offender was consistently co-operative throughout the vigil and at no time attempted to interfere with the execution of the Border Service or police officers’ duties. The RCMP simply had no reasonable grounds to suspect the offender had any contraband, weapons or means of escape secreted on her person that would be revealed in a strip search.

[ 45 ] Nor could there be any concern that the offender might bring contraband into the prison system, given that she was the sole prisoner in the “loo” room while at the airport with Border Services, and was placed alone in a cell while at the RCMP detachment in the airport.

[ 46 ] The Crown’s alternative argument is that because the offender had already managed to hide the vaginal insert during the first strip search, the police were justified in suspecting that she had further evidence on or inside her. But as the search was not a “cavity” search – and no such authorization was sought - it cannot be justified as an attempt to locate another insert, or for that matter, the pellets she had swallowed.

[ 47 ] The onus is on the Crown to demonstrate why, having already strip searched the offender when she was initially detained, it was necessary to strip search her again following her arrest. As the Crown has not advanced any persuasive evidence on that point, I find the second strip search violated s. 8.

4. Effect on sentence

[ 48 ] As a starting point I observe the direction from our Court of Appeal that in cases involving approximately half a kilo, such as this one, the range is from 2 to 5 years imprisonment: R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129, para. 108 .

[ 49 ] But for my finding of police misconduct, in my view a fair sentence in this case would be 2.5 years imprisonment.

[ 50 ] Virtually all the cases provided by defence counsel with sentences below that range involved a guilty plea, a significant mitigating feature not present here.

[ 51 ] That said, as noted above, a sentencing judge can take police misconduct into account when formulating sentence.

[ 52 ] I find it troubling that although Golden was issued over a decade ago, both the CBSA and the RCMP appear either unaware of or disinterested in what the Supreme Court had to say.

[ 53 ] At the same time, given the unique context of this case, it seems unlikely that the second strip search had a significant impact upon the applicant.

[ 54 ] After factoring in all those considerations, in my view what would otherwise be the appropriate sentence of 2.5 years imprisonment should be reduced by six months to reflect the particular police misconduct that occurred here, with the result that the applicant is sentenced to 2 years imprisonment. In addition, she will be subject to the following collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively, along with an order for a DNA sample.

Baltman J.

Released: September 5, 2012

COURT FILE NO.: CR 10 813
DATE: 20120905

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN - and – ASHLEY EBANKS Defendant

REASONS FOR SENTENCE
Baltman J.

Released: September 5, 2012