ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-081
DATE: 2012-11-23

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – WILLIAM PRATT Appellant

Kathryn Hull, for the Respondent

Martin Montes, for the Appellant

HEARD: October 15, 2012

ON APPEAL FROM THE DECISION OF JUSTICE J.J. DOUGLAS OF THE ONTARIO COURT OF JUSTICE DATED FEBRUARY 14, 2012

McCarthy J.:

OVERVIEW

[ 1 ] The Appellant was convicted under ss. 253(1) (a) and (b) of the Criminal Code , R.S.C., 1985, c. C-46, before His Honour Justice Jon-Jo Douglas of the Ontario Court of Justice in Bradford on February 14, 2012.

[ 2 ] The Appellant appeals against that conviction stating that his rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) were violated as a result of the unreasonable strip search conducted by the South Simcoe Police Services. Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure.”

[ 3 ] The Appellant submits that the appropriate remedy in the circumstances is a stay of proceedings under s. 24 (1) of the Charter .

THE FACTS

[ 4 ] The Appellant was arrested by Police Constable Ochnik of the Nottawasaga OPP detachment in the early morning hours of September 17, 2010. A search incident to arrest consisted of a quick pat-down. The Appellant was taken to the Nottawasaga OPP detachment where he underwent a more thorough frisk search at the hands of Police Constable Kanstein. This second search included using a metal detecting wand, checking pockets, and touching around the body to ensure that the Appellant did not have any weapons, means of escape, or any evidence relevant to the offences for which he was being investigated. Neither of these searches revealed the presence of any weapons or contraband.

[ 5 ] Because of technical problems with completing the breath tests at the detachment, the Appellant was escorted by the two officers to the South Simcoe OPP detachment. There the booking officer, a Sergeant Buchanan, oversaw a final search, commonly referred to as a “strip search”. It is this strip search that became the subject matter of the s. 8 Charter application before the trial judge. The booking and strip search was captured in its entirety on video tape.

[ 6 ] The Appellant was advised that he would be searched. He was asked to remove his shoes whereupon the Appellant proceeded to remove all of his clothing for the officers. While none of the officers directed the Appellant to remove his clothing, Sergeant Buchanan testified at trial that it was his intention to conduct a search that included the removal of articles of clothing. The removal of clothing took place in the booking hall area, not in a private room. Sergeant Buchanan searched the Appellant’s jeans. None of the officers actually touched the Appellant during the search.

[ 7 ] At trial, Sergeant Buchanan gave evidence that, depending on certain circumstances, it is his practice when booking prisoners into custody to thoroughly search them, typically down to their undergarments. Accordingly, if the Appellant had not immediately started removing his clothing, he would have asked the Appellant to remove articles of his clothing for the search. The Sergeant further testified that, other than the concerns he has with every prisoner, he had no specific concerns about the Appellant that necessitated such an invasive search. The Sergeant was not made aware of the previous two searches conducted by PCs Ochnik and Kanstein respectively. The Appellant was not lodged with any other prisoners while at the South Simcoe detachment. The breath testing procedure occurred shortly following the impugned search.

THE APPELLANT’S POSITION

[ 8 ] The Appellant contended that the learned trial judge made an error of law in holding that a strip search conducted as a matter of routine policy does not violate s. 8 of the Charter in the case of a short-term detention of a person in the course of a drinking and driving investigation.

[ 9 ] The Appellant argued that the trial judge’s factual findings were inconsistent with his finding that the Appellant’s Charter right to protection from unreasonable search was not violated. Those factual findings were as follows:

(i) The strip search in question was conducted because it was the routine of Sergeant Buchanan to do so when booking a short term detainee into the South Simcoe detachment; and

(ii) The search was conducted without the appropriate level of privacy afforded to the Appellant.

[ 10 ] The Appellant placed considerable reliance on the decision in R. v. Golden , 2001 SCC 83 , [2001] 3 S.C.R. 679. In that case, the Supreme Court of Canada held that strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees. Whether one is arrested for impaired driving, public drunkenness, shoplifting, or trafficking in narcotics, the fact that a strip search is conducted on an arrestee as a matter of routine policy, and is carried out in a reasonable manner, does not render that 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.

THE RESPONDENT’S POSITION

[ 11 ] The Crown agreed that Golden sets out the law governing strip searches. It did not contest that the Appellant in this case underwent a strip search at the hands of the South Simcoe Police Service. It simply submitted that the trial judge’s application of the principles in Golden to the circumstances in this case was measured and reasonable.

[ 12 ] The Crown’s position was that, absent a palpable and overriding error, a trial judge’s findings of fact in relation to an alleged Charter violation are to be given deference. In contrast, the scope of the Charter right is an extricable question of law to which the correctness standard applies: R. v. Chang , 2003 ABCA 293 , 339 A.R. 278, at para. 8.

[ 13 ] The Crown concluded by arguing that, in the event that there was a breach of s. 8 of the Charter , neither a stay of proceedings nor the exclusion of the evidence of the impaired operation of the motor vehicle would be warranted. There was no nexus between the evidence upon which the conviction was based and the alleged breach. A stay is not an appropriate remedy because this is not one of the “clearest of cases” of a Charter violation.

THE TRIAL JUDGE’S REASONS

[ 14 ] The trial judge identified four areas of concern in respect of the search in question:

(i) the search was conducted at a booking desk, not in a more private area;

(ii) the search was video recorded;

(iii) the search seemed policy directed, as opposed to individualized; and

(iv) the arresting OPP constables did not provide all pertinent information to Sergeant Buchanan.

[ 15 ] The trial judge found that the conduct of this search at the booking desk was not in public. Acknowledging that something other than the open hall should have been used, he noted that the search took place in the early morning with only the officers involved in the search present. In addition, had the Appellant not taken it upon himself to disrobe, the search would have unfolded in a manner that would have ensured that he was clothed as completely as possible throughout the exercise.

[ 16 ] On the issue of video recording, the trial judge concluded that, on balance, taking a video of a search is desirable since it creates a record. Nevertheless, some means of preserving the privacy and dignity of the accused is required. He went on to conclude that, in the absence of evidence pertaining to the maintenance and destruction of video recordings, the issue required no further examination. The trial judge remarked that the Appellant’s brief nudity was not in fact recorded.

[ 17 ] In respect of the third area of concern, the trial judge acknowledged the need for a policy or process in respect of strip searches in order to avoid random or arbitrary searches. He stated that a documented policy should ideally form part of the record to allow for the court to assess both the policy itself, and the officer’s conformity with it, on the facts of a particular case. The trial judge went on to caution of the need for some flexibility, while bearing in mind at all times the need to ensure the safety of officers, inmates, and others. The trial judge expressed the following concern:

...if all those who fail a roadside and are to be present in a police station for a very short period of time pending testing and release are subject to a strip search as a matter of policy and without regard to the subtleties of the situation, the search might be seen as unreasonable.

[ 18 ] On its face, the trial judge appeared to find that Sergeant Buchanan conducted a strip search of all persons entering the cells. He queried whether that was the policy of the South Simcoe police service itself. However, the trial judge went on to emphasize that the policy was not applied without consideration of individual circumstances. He accepted the Sergeant’s evidence that, depending on the shirt type, a shirt might not be removed but only lifted. He further accepted that only some types of pants, such as jeans that were difficult to search, were required to be removed. The trial judge concluded that Sergeant Buchanan was clearly aware of his obligation to assess the individual circumstances, even if, in the end, he desired greater confirmation of the absence of any contraband than a mere pat-down would generally provide.

[ 19 ] The trial judge accepted that the OPP failed to transmit information about the searches already conducted to the Sergeant Buchanan. Thus, the decision to conduct the search was arrived at without all available information. However, the trial judge also found that, in light of the aggressive behaviour exhibited by the detainee and the likelihood that his detention would be of some duration, the Sergeant’s decision to conduct the search would not have changed.

ANALYSIS

[ 20 ] I find that the trial judge properly applied the principles in Golden . He emphasized the requirement that searches not be conducted as a matter of routine and without regard to individual circumstances. He gave that consideration paramountcy when assessing the evidence of Sergeant Buchanan. In my view, the trial judge properly identified the four areas of concern with the search and embarked on a review of each one in context.

[ 21 ] I agree with the Respondent that the trial judge took the kind of nuanced approach called for in Golden , which is to take into account a number of factors both particular to the individual and to the risk posed to the police by the possibility of hidden weapons, in assessing whether a search was reasonable.

[ 22 ] Ultimately the trial judge concluded that, while it was the policy of Sergeant Buchanan to strip search all entering the cells, that policy was not applied without consideration of individual circumstances. Indeed, while the evidence of the Sergeant is somewhat equivocal on the point, there was evidence upon which the trial judge could properly conclude that the strip search performed on the Appellant was not done without consideration of all circumstances. The following are extracts from the evidence at trial given by Sergeant Buchanan on February 14, 2012:

Buchanan : when I book prisoners into custody, they are thoroughly searched, more than a search on the side of the road. They’re typically searched down to their undergarments, depending on the prisoner and obviously what they’re wearing to begin with . [Emphasis added.]

Counsel for Accused : Okay. So kind of standard operating procedure when you’re booking in a prisoner would be to do a search down to the level of the undergarment?

Buchanan : It varies depending on the prisoner and depending on what they’re wearing.... If they’re wearing jeans, jeans are much more difficult to search and it seems – in the last 15 years jeans seem to have more pockets every year. With jeans what I have them do, if they’re wearing boxers, is they remove their jeans, they hand them to me, I search every pocket thoroughly and then they put their jeans back on.

Counsel : And with respect to Mr Pratt, did you have any concern regarding him – that he had, for example something like a weapon on his person, did you have any reason to be concerned about that?

Buchanan : No, other than the concern I have with every prisoner that that’s a possibility.

Counsel : But any specific concerns with respect to Mr. Pratt?

Buchanan : Mr Pratt was trying to be cooperative but it was evident that he was angry and he had a little bit of an edge to him. He wanted to be compliant, but he was having a little bit of difficulty. He was upset.

Counsel : Did that lead you to believe that he had any weapons or anything of that nature on his person?

Buchanan : No, but it took away from a little bit of credibility believing what the prisoner had to say.

Counsel : And did you have any reason specifically with respect to Mr. Pratt to believe that he may have other contraband items on his person, for example, drugs or something of that nature?

Buchanan : The one – the one way he answered one of the questions caused me a little bit of concern, not a lot, but enough to cause me some concern. One of the questions we ask is, ‘Have you taken any non-prescribed drugs which might affect your status while you’re in custody?’, and his response was, ‘I wish’.

[ 23 ] On the trial judge’s findings of fact, I find no overriding or palpable error requiring appellate intervention. There was evidence upon which the trial judge could fairly and properly arrive at his conclusion that the policy to search was not applied to the Appellant without consideration of individual circumstances. The trial judge found that Sergeant Buchanan had regard to the Appellant’s attire (jeans), his edginess, his anger, his difficulty complying, and his troubling answer to the question pertaining to non-prescribed drugs. The trial judge’s findings on these facts are entitled to a degree of deference. In my view, they should not be disturbed.

[ 24 ] The inherent conclusion of the trial judge was that the policy of Sergeant Buchanan did not constitute a routine police department policy applicable to all arrestees. This is a conclusion of mixed law and fact. It too is entitled to a certain amount of deference, but it will also be subjected to a greater measure of scrutiny than a finding of fact since it tends to define an element that is so critical to the Golden analysis.

[ 25 ] The words “applicable to all arrestees” describes the type of routine police policy on searches that run afoul of the Golden principle. The requirement of “a compelling reason for performing a strip search in the circumstances of the arrest” (see para. 95 of Golden ), should presumably result in at least some arrestees not being subject to a search.

[ 26 ] In my view, a routine search policy will lead to a s. 8 Charter violation when it is followed and applied without regard to some objectively observable and reasonable criteria related to the detainee in question. A policy, or routine of a particular officer or detachment, which may lead to a majority of detainees being subject to strip search, does not necessarily make the particular, individualized search unreasonable. A policy to strip search all arrestees is unreasonable. A policy to consider all arrestees as candidates for a strip search is not unreasonable. It becomes unreasonable if the search proceeds as a matter of routine without regard to individual circumstances.

[ 27 ] The trial judge in the case at bar recognized the difference. He spoke of the necessity of having regard to the “subtleties of the situation” in following a policy regarding strip searches. He cited the compelling reasons identified by Sergeant Buchanan as a justification for the strip search of the Appellant. In my view, the trial judge committed no error in holding that the policy of Sergeant Buchanan did not violate the principle in Golden that a policy of routine search should not be applicable to all arrestees.

DISPOSITION

[ 28 ] As the trial judge did not find a breach of s. 8 of the Charter , he did not embark on the analysis of the appropriate remedy under s. 24 of the Charter . As a result, his decision contained no analysis under the Supreme Court of Canada decision in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. Accordingly, there is no appellate review to conduct in that regard.

[ 29 ] For the above reasons, I would dismiss the appeal.

McCARTHY J.

Released: November 23, 2012