ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1634/12

DATE: 20130417

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON LAWRENCE LOW and SHAUNA CHRISTINE JOHNSTON

Michael A. Robb, for the Crown

Kenneth Marley, for the Applicant, Jason Lawrence Low

Evlynn Lipton, for the co-accused Shauna Johnston

HEARD: April 5, 9 and 10, 2013

DESOTTI, J.

[1] The accused, Jason Lawrence Low is charged in an eight count indictment with 2 counts of possession of a controlled substance for the purpose of trafficking, 2 counts of possession of a controlled substance, and 4 counts of breaches of probation. This application seeks to exclude as evidence, pursuant to section 24 (2) of the Charter of Rights and Freedoms, all items seized from the applicant’s clothing by officers of the Sarnia Police Service during their attendance at this residence pursuant to the search warrant.

A. The Facts

[2] Detective Constable Vosburg prepared information in support of a telewarrant with respect to the residence of David Shipling located at 273 Emma Street in the city of Sarnia, Southwest Region, Province of Ontario.

[3] There is no issue that the warrant was appropriately issued. The purpose for the warrant was that through surveillance and other confidential information the officer had reasonable and probable grounds to believe that Mr. Shipling was dealing in large amounts of oxycodone from this residence.

[4] Upon the execution of the warrant, the accused, Jason Lawrence Low was observed by Constable Skinn to be sitting on a couch with a bag of marijuana beside him and on a coffee table in front of the accused was both money and what appeared to be a ‘crack pipe’, a device used to smoke or inhale drugs.

[5] The officer physically took Mr. Low from the couch and handcuffed him with his hands behind his back. The handcuffing of this accused by placing his hands behind his back was confirmed by officer Vosburg. The significance of this description of where the accused hands were at the material time concerns the evidence of the accused, Jason Low, who indicated that he was handcuffed from the front and situated at the doorway entrance with his hands on the door.

[6] Concerning this material and significant difference, I accept the evidence of the officer with respect to his account of where he placed the handcuffs.

[7] Constable Skinn then indicated that the accused was very fidgety and began to blade his body away from him. The term “blade” means to move away or turn away from the officer as if the accused, was attempting to hide something from the officer.

[8] The officer became suspicious that the accused was either hiding a weapon or hiding drugs and thus gave give a pat down. Officer Vosburg then entered the room and gave the accused the usual or standard caution.

[9] Officer Skinn then did a strip search as he was most familiar with this accused and knew from past dealings that this accused’s modus operandi was to conceal drugs between his buttocks. He stated in cross-examination on this issue as follows:

I had been receiving information about Mr. Low and trafficking narcotics and I also had information that he hid drugs in his underwear near his rectum so that if he was approached by police that he could shove them into his rectum.

[10] The officer’s notes do not reflect a chronological sequence as indicated by Officer Skin. In this sense, he indicates that the caution was given prior to the strip search. The Officer also indicates that none of the other parties found in this residence were present when this search took place.

[11] In short, this strip search was done in private with no one else present. I would note that on this point the accused, Jason Low, indicated that he was strip searched at the open doorway and that a neighbour who attended at the scene would have observed his nakedness and that two of the parties found in the residence, including a female, were present for this strip search as well.

[12] While this ‘arena’ of people is said by the accused to have been present, no one was called to verify his nakedness at the material time. I also would note that there is evidence that certain individuals who were charged were present but in the kitchen. However, there is clear evidence given by Officer Vosburg that no one in the kitchen could observe anyone in the living room.

[13] Again, I am convinced that the accused was strip searched as stated by Officer Skin and not as stated by the accused, Jason Low.

B. Analysis

[14] Defence counsel concedes, based on R. v. Mann, R. v. McAuley, and R. v. Dedman, that the police can detain individuals found in an apartment/residence as a result of the execution of a valid search warrant that contains reasonable and probable grounds that the residence is being used by an individual to traffic in drugs, namely oxycodone. The pat down of the accused was initially done for both officer safety and because of the conduct of the accused (“blading”) when he was handcuffed.

[15] Most significantly, any strip search of the accused’s person was done specifically because of the knowledge that the officer had with respect to the modus operandi of the accused, Jason Low and because of his suspicious conduct upon detention. Nevertheless, when officer Skin observed the bag of marijuana adjacent to the accused on the couch, along with the money and the ‘crack’ pipe on the coffee table, there is no question that the accused was going to be arrested at least for the possession of marijuana for the purpose of trafficking.

[16] The eventual search and discovery of the 7 bags of cocaine and ecstasy tablets in the front pocket of the sweater of the accused merely added to the charges that were going to be laid as a result of the earlier observations of the bag of marijuana and the ‘crack’ pipe.

[17] Even if I am wrong about the reasonable and probable grounds for the search of the accused’s sweater and the ultimate discovery of the aforementioned drugs, there is no basis to exclude them pursuant to s.24 (2) of the Charter of Rights and Freedoms based on the Supreme Court decisions in R. v. Harrison or R. v. Grant.

[18] Without going into too great a discussion on this issue, there was a clear basis for Officer Skin to believe, based on his personal observations both with respect to the money, ‘crack pipe’ and bag of marijuana in plain view, that he had an objective basis to detain, arrest, and then search the accused.

[19] Finally, I would agree with defence counsel and even the acknowledgment of the Crown that any ‘field’ strip search should be done most sparingly and only in the clearest of circumstances. In these unique circumstances, and based on the demeanour, conduct and actions of the accused, Jason Low, and the attempt by the officer to provide some privacy to the accused, I have concluded that it was a necessary search.

[20] For these brief reasons the application is thus dismissed.

Original Signed “Justice John A. Desotti”

The Honourable Mr. Justice John A. Desotti

Released: April 17, 2013

CASES CONSIDERED

Dedman v. The Queen, [1985} 1985 41 (SCC), 2 S.C.R. 2; Regina v McAuley, 1998 13317 (MB CA), 124 C.C.C. (3d) 117, 1998 CLB 263, 38 W.C.B. (2d) 103, 167 W.A.C. 202, 126 Man. R. (2d) 202, 52 C.R.R. (2d) 337, [1998] M. J. No. 194; R. v. Clayton, 50 W.C.B. (2d) 292, 2001 CLB 1073, [2001] OTC 473, [2001] O.J. No, 2393; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, [2007] S.C.J. No. 32; 2007 SCC 32; R. v MacIsaac, [2001] O.J. No. 2966, [2001] O.T.C. 584, 106 A.C.W.S. (3d) 636; R. v. Phan, [2003] A.J. No. 607, 2003 ABQB 469; R. v. Orr, [2010] B.C.J. No. 2576, 2010 BCCA 513, 297 B.C.A.C. 54; R. v. Grant, [2009] S.C.J. No. 32, [2009] A.C.S. no 32, 2009 SCC 32, EYB 2009-161617, J.E. 2009-1379; R. v. Mann, 2004 SCC 52, 185 C.C.C. (3d) 308; R. v Dhillon, 2012 BCCA 254291 C.C.C. (3d) 93; R. v. Araujo (2000) 2000 SCC 65, 149 C.C.C. (3d) 449; R. v. Pires & Lising, 2005 SCC 66; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539; R. v. Sanchez & Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Zammit, 1993 3424 (ON CA), [1993] O.J. No. 881, 13 O.R. (3d) 76, 62 O.A.C. 272, 81 C.C.C. (3d) 112, 21 C.R. (4th) 86, 15 C.R.R. (2d) 17, 19 W.C.B. (2d) 348; Debot v The Queen¸1989 13 (SCC), 52 C.C.C. (3d) 193; R. v. Morris, [2008] O.J. No. 2281, 2008 ONCA 276, 175 C.R.R. (2d) 276, 77 W.C.B. (2d) 531; R. v. Stevens [2011] O.J. No. 3164, 2011 ONCA 504, 239 C.R.R. (2d) 111, 282 O.A.C. 16, 106 O.R. (3d) 241, 87 C.R. (6th) 227, 274 C.C.C. (3d) 353, 96 W.C.B. (2d) 337, 340 D.L.R. (4th) 300, 2011 CarswellOnt 6133; R. v. Bajich [2012] O.J. No. 5325, 2012 ONCJ 696

COURT FILE NO.: 1634/12

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASON LAWRENCE LOW and SHAUNA CHRISTINE JOHNSTON

REASONS FOR JUDGMENT

DESOTTI, J.

Released: April 17, 2013