SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20130812

RE: R. v. Glendon Madray

BEFORE: Justice Spies

COUNSEL:
Matthew Bloch, for the Crown

James Miglin, for the Defendant

HEARD: August 9, 2013

Ruling on defence stay application

Overview

[1] When the defendant Glendon Madray instructed Mr. Miglin to bring a routine application to permit him to sit at counsel table, he could never have imagined that if his application were granted, that it would result in him being routinely subjected to several Level 3 strip searches each and every day for the duration of what was expected to be a five to six day trial. The application was not opposed by the Crown; Mr. Bloch, although he did call the Staff Supervisor for the Superior Court-Court Security, Natasha Prasad, as a witness. She strongly objected to the application and was ostensibly called by Mr. Bloch so that the Court could hear her concerns when making its decision.

[2] I had no difficulty in granting the application and as a result Mr. Madray sat at counsel table next to Mr. Miglin during the selection of the jury. The fact that immediately following my decision to permit Mr. Madray to sit at counsel table Officer Prasad ordered her staff to routinely strip search Mr. Madray following every break, including lunch, and at the end of the court day, was clearly a surprise to counsel and to the Court. The lawfulness of those searches and their impact on this trial and whether or not the trial should proceed is now to be determined.

[3] Mr. Madray is charged with assault with a weapon; a knife, and aggravated assault in connection with an alleged assault on his wife on August 4, 2012. It is alleged that he stabbed her with a kitchen knife in the arm and in the back during the course of an argument. As I understand it, Mr. Madray intends to assert self defence stemming from his position that his two sons were physically involved with him in a struggle for a key to the apartment at the time his wife was injured.

The Defence Application to Have Mr. Madray Sit at Counsel Table

[4] The trial began on August 6, 2013. The complainant and her sons failed to attend as witnesses and the Crown sought, and I ordered, material witness warrants. On August 7, 2013, while waiting for a jury panel, the Defence brought the application to have Mr. Madray sit at counsel table. The only evidence I received on that application came from Staff Supervisor Prasad. I understand that Officer Prasad is the most senior officer in charge at this time in the court house at 361 University Avenue as her superior is on vacation. She testified that she had both general and specific concerns in support of her position that Mr. Madray should remain in the prisoner’s dock. In fact she testified that it is her personal opinion that he does not “deserve” to sit at counsel table.

[5] With respect to her general concerns, Officer Prasad testified that the court officers in charge of security in the courtroom are trained on the basis that an accused person sits in the dock and it is not part of their regular training to deal with situations where the accused sits outside of the dock. She suggested that where this occurs, the officers have less time to react if there is an issue. I was very surprised by this evidence as in my experience it is very common, certainly in the shorter trials, to have the defendant sit at counsel table. Officer Prasad also referred to the fact that the chairs outside the dock are not secured to the floor and that inside the dock an accused has no access to contraband. Outside the dock she was concerned an accused person would have access to contraband that he might bring back to the cells such as a pen that could be used as a weapon or even a paperclip that might be used to unlock a handcuff.

[6] With respect to concerns specific to Mr. Madray, Officer Prasad relied only on his criminal record which she testified demonstrated a documented history of violence and a failure to comply with court orders. She produced Mr. Madray’s criminal record which dates back to 1995. It includes several convictions for theft under and a couple of drug offences. In addition there are three convictions for assault; including one assault with intent to resist arrest in 1995, one assault with a weapon in 2006 and a third assault conviction in 2010. The longest sentence imposed for any of these convictions was 30 days in addition to 60 days pre-sentence custody plus two years’ probation. There are also a number of convictions for breach of court orders including failure to comply with recognizance and probation.

[7] Officer Prasad also stated that as this is a domestic assault matter, and there are three civilian witnesses; namely the complainant wife and the sons, she has a “heightened concern” about the safety of those witnesses and the security of all participants in the trial. There was nothing more specific about this case, however, that she mentioned in this regard so this concern would apply to all domestic assault cases that are tried in these circumstances where the accused is permitted to sit outside the dock and the complainant testifies.

[8] Officer Prasad had access to information from the Don Jail as to how Mr. Madray has behaved while in custody; he has been in custody for about one year. She had no evidence of any issues concerning his behavior therein. She also advised that there was no evidence of any incidents involving Mr. Madray in the cells at the court house or anywhere in the building. In my experience, when there are legitimate security concerns, they are typically based on a defendant’s behavior while in custody.

[9] Officer Prasad suggested that if Mr. Madray was permitted to sit at counsel table that he be placed in leg shackles that would be wrapped to avoid any noise heard by the jury. Cloth skirts would be placed around both counsel tables so they could not be seen. She advised that this might take a day to set up. She did not advise the Court that if the order were granted that she intended to direct her officers to perform regular strip searches.

[10] At the completion of Officer Prasad’s evidence, Mr. Bloch did not take the position that Mr. Madray ought to sit in the prisoner’s dock. In fact he advised the court that he actually preferred that Mr. Madray sit at counsel table, next to Mr. Miglin, so he would not be in the line of vision of his wife when she testified.

[11] I generally defer to the views of the security officers in the court house as they are trained and responsible to ensure the safety of everyone in the courtroom. However, in this case the concerns raised were essentially generic-even the criminal record is not unusual for cases heard in this court. Although I did not consider it necessary I did consider with counsel the suggestion that leg shackles be used. Neither counsel nor I had any experience with this and there was a concern that if there was any noise coming from the shackles, which in my view could not be ruled out, that I would then likely have to declare a mistrial.

[12] As a result, following a brief discussion with counsel, the consensus was that Mr. Madray sit at counsel table next to Mr. Miglin and that he have access only to a conventional lead pencil and paper for the purpose of making notes. I had already informed Officer Prasad that I would permit two court officers to be present during the trial and she advised that she would make her best efforts to do that. The balance of the day was spent picking the jury. Throughout the jury selection Mr. Madray sat at counsel table without incident. At all times there were two court officers in the courtroom seated near him.

The Level 3 Strip Searches of Mr. Madray

[13] When court resumed on the morning of August 8th, I was advised by Mr. Miglin that Mr. Madray was being subjected to Level 3 strip searches every time he was taken from the courtroom back to the cells in the court house including all breaks, at lunch and at the end of the day. Needless to say he was concerned about this and wanted to know the basis upon which this was being done. I was concerned about this as well. Without prompting, one of the court officers in attendance at the time advised the Court that this was a relatively new policy imposed earlier this year that applied to all accused persons who were in custody at the time of the trial and were permitted to sit at counsel table. I was assured that Mr. Madray was not being singled out. I requested that Officer Prasad return to the court so that she could explain this policy.

[14] After the Crown’s opening statement, another Supervisor with the Superior Court - Court Services, Shawn White, attended before the court to provide further information. He did not offer an explanation for why Officer Prasad had not come as requested, nor did I ask for one. I did not ask him to swear an oath or be affirmed as I had no reason to doubt that what he would tell me would be the truth. He confirmed that the “policy” was that a Level 3 strip search be performed on every accused person in custody who was sitting at counsel table, every time the accused left the courtroom; at the breaks, on lunch and at the end of the day. He stated that these searches were utilized as per a “supervisor’s discretion” and based on “a reasonable set of circumstances”. He said the purpose was to ensure no contraband was brought into the cells. He advised that there were no exceptions to this policy and that these strip searches were being done for every accused in custody who was permitted to sit at counsel table; Mr. Madray was not being singled out.

[15] I asked Officer White about his reference to the “supervisor’s discretion” and he advised me that it was the supervisor’s discretion that enabled them to do Level 3 searches on any inmate and that this had been the practice as long as he was aware. Again I found this surprising as it is common ground that neither Mr. Miglin nor Mr. Bloch nor I had ever been aware of this practice of routine strip searches before. I reviewed with Officer White where Mr. Madray was being permitted to sit and that he only had access to a pencil but he advised that there could be no exception to this practice. I presumed that he was taking instructions from Officer Prasad although I did not make that inquiry.

[16] Officer White advised that there was a written policy and he was asked to seek instructions to permit him to produce it to the Court. In the meantime the trial proceeded with the jury and Mr. Bloch began to call his witnesses.

The Written Policy

[17] Officer White returned just before lunch hour and provided a policy document which is entitled “CRT 01-02 SEARCHES”; (the “Policy”). The Policy was effective as of January 1st, 2011; 2½ years ago. It does not specifically deal with what should occur when an in-custody accused person is permitted to sit at counsel table. It does, however, set out when and how Level 3 strip searches ought to be conducted.

[18] The Policy describes the Level 3 searches conducted by the court officers as being equivalent to a “strip search;” a term used by the courts, and defines the search as follows:

means a search that includes the removal of some or all of a person’s clothing and a visual inspection of the body, which includes the removal of clothing that fully exposes the undergarments or an area of the body normally covered by undergarments (genitalia, buttocks, women’s breasts).

[19] The definition goes on to state:

Due to the high degree of intrusiveness of this type of search, it shall only be conducted when it is reasonable and necessary, considering the purpose and the grounds that exist at the time, which justify the search. [emphasis added]

[20] According to the Policy, a Level 3 strip search can only be authorized by a supervisor. The Policy sets out the grounds for searching a person as follows:

For a search to be lawful it must be reasonable and justified given all the circumstances and it must be conducted for a valid reason. Searches conducted simply as a matter of routine or “standard procedure” is [sic] not justified in law.

Stronger grounds are required as the level of intrusiveness of a search increases. The decision as to the appropriate level of search rests with the supervisor. The more intrusive the search the more justification is required, and both the officers and the supervisor must be able to articulate the need for the more intrusive search. [Emphasis added]

[21] The Policy also provides that searches of persons shall be conducted keeping in mind that the safety of Service members, the person being searched, and the public are paramount. The Policy expressly provides however, that searches shall not be conducted to “intimidate, ridicule or induce admissions.”

[22] The Policy requires full details of all searches to be recorded in the memorandum book (which I understand is the note book of the individual officers involved in conducting the search), including the grounds for the level of search. Furthermore, information necessary to complete the Unit Commander’s Morning Report (UCMR) must be provided for all Level 3 and Level 4 searches.

[23] A “Mandatory Course of Action” is set out when a court officer is authorized to conduct a Level 3 search. It details how the strip search should be conducted and the information to be recorded in the memorandum book and provided to the supervisor for inclusion in the UCMR.

[24] After counsel and I had an opportunity to read the Policy over the lunch hour, court reconvened and Officer Prasad was present. Mr. Miglin pressed his objection to these searches and advised the Court that in his view the searches were not only contrary to the Policy but also contrary to Mr. Madray’s Charter rights. He advised that he would seek instructions to bring an application to stay the trial if the searches did not stop.

[25] I had advised Mr. Miglin at various points during the day when this matter was discussed, and did so again at this stage, that notwithstanding my concerns about the propriety of the searches, that in my view I did not have the jurisdiction to order that the strip searches stop as they were occurring outside of the courtroom. Although Mr. Miglin suggested that I did have some inherent jurisdiction to control what happened in the cells, he provided no authority to support this position. Unfortunately, I remain of view that I cannot directly order that these strip searches of Mr. Madray stop.

[26] After my discussion with counsel I turned to Officer Prasad who had been present for all of this dialogue. It would have been clear to her certainly by this point that I wanted the strip searches to stop. I advised her directly of what Officer White had informed the court as to the Policy, when she was not present. She told us that what Officer White had said would not be her evidence and that the policy described by Officer White was not the policy. She confirmed however, that the Policy document provided to the Court was the policy that she relied upon and that she was the supervisor who has directed the Level 3 searches of Mr. Madray. She also confirmed that they were still being conducted following each break, including lunch, and at the end of the day. Officer Prasad advised that she had taken the matter up to her Unit Commander and legal counsel for the Toronto Police Service (“TPS”).

[27] In light of my concerns about these searches I asked that Officer Prasad reconsider her decision and she agreed to do so. She also agreed that following the afternoon break that afternoon that Mr. Madray would not be strip searched. I advised Officer Prasad that if the searches did not stop, that she should arrange to have counsel attend court so that the issue could be argued.

[28] At the end of the court day, just after the completion of the examination in chief of the complainant wife, Officer Prasad returned and informed the Court that she had spoken to her Unit Commander and counsel and that she remained of the view that her reasons for the Level 3 searches were sound and that they would continue.

[29] In light of this further information, Mr. Miglin advised that he intended to bring a stay application and it was agreed with counsel that it would be argued the next day; August 9th and that the jury would be excused until August 12, 2013. Despite my request to the contrary, Officer Prasad insisted that Mr. Madray be strip searched when he left the court. She also confirmed to the Court that she had given all of her reasons for ordering the strip searches when she testified on the initial application to have Mr. Madray sit at counsel table. In addition Officer Prasad was asked to produce the relevant notes from the officers who had conducted the strip searches and the record from these searches from the UCMR. She advised the Court that she would need instructions to produce these documents.

[30] It should also be noted at this stage that when the complainant testified, because Mr. Madray was sitting at counsel table, she would not have been able to see him. She showed absolutely no concern about the presence of Mr. Madray. In any event, I am sure that if I requested it, Mr. Miglin would conduct his cross-examination from the lectern so the complainant would still not see Mr. Madray. Furthermore, throughout the complainant’s evidence I did not observe Mr. Madray making any body movements, postures or facial expressions of a threatening nature. He sat quietly listening to the evidence. This would have been obvious to the various shifts of two court officers in attendance during the day had Officer Prasad had any interest in this information. There is also no evidence that any contraband has been found on Mr. Madray during any of the seven strip searches he has already been subjected to.

The Defence Application to Stay the Charges

[31] Mr. Madray has now brought an application to stay the criminal charges as a remedy for what he alleges has been repeated unlawful strip searches that he has been forced to endure since I granted his request to sit at counsel table. Mr. Miglin does not attack the Policy as recorded in the document provided to the Court but submits that it has not been followed by Officer Prasad and that the strip searches of Mr. Madray breach his right to be secure against unreasonable search or seizure in accordance with s. 8 of the Charter.

[32] Since all of the strip searches have been warrantless the onus is on the Crown to prove that they have been reasonable and lawful. Mr. Bloch submits that the defendant's rights have not been violated and, in any event, a stay is not warranted in these circumstances. Mr. Bloch also advise me that he spoke to counsel for TPS and that she was concerned that she would not have standing and so it was agreed that Mr. Bloch would make all of the submissions. Although I am puzzled by this given my request that counsel for the TPS be present I am satisfied that Mr. Bloch has put forward the position in support of Officer Prasad as best as it can be presented.

[33] At the outset of the application Mr. Bloch asked to recall Officer Prasad to the stand to deal with certain discreet areas. Mr. Miglin objected. Mr. Bloch asked that Officer Prasad testify about the persons she consulted with but as that occurred after she made her decision and would involve solicitor client privileged information, I did not permit this. He also asked that she be permitted to testify about how the strip searches were being conducted. This request was made notwithstanding the fact that no notes of the searches were produced nor were the contents of the UCMR provided. I was advised that in fact the recording required by the Policy has not been done save for recording the time of the strip searches and who conducted them in the memo books of the officers. Given the lack of disclosure Mr. Miglin is not able to challenge the manner of these strip searches. Accordingly, I must presume there is no issue with the manner in which they are being conducted and I ruled that Mr. Bloch could not call this evidence as it was not relevant to this application.

[34] Mr. Bloch also asked that Officer Prasad be permitted to give evidence about the history of contraband in the court house. She had already provided further information in that regard and I did not consider it appropriate to allow her to amplify the record when she had clearly indicated that she had already told me everything she considered in deciding to order the strip searches.

[35] I did permit Officer Prasad to give evidence about the alternatives she considered in lieu of strip searches. These had not been recorded anywhere at the relevant time but a will say had been provided to Mr. Miglin. Officer Prasad testified that she considered putting Mr. Miglin in isolation but decided it was not an option for various reasons which I need not review here. In response to a leading question from Mr. Bloch she stated that she also considered searches that were short of a Level 3 search but in cross-examination admitted that this was not in her will say. Similarly Officer Prasad was asked if she considered Mr. Madray sitting at the counsel table behind Mr. Miglin. This was not in her will say either and in cross-examination she admitted that she did not consider this as an alternative at the time she made her decision to order strip searches. I understand from Mr. Bloch that this was a suggestion he had made to her no doubt hoping to solve this dilemma. Officer Prasad testified that this would not be satisfactory because the court officer cannot only watch Mr. Madray but must keep his or her attention on everyone in the courtroom. Although I understand that evidence, she did not explain nor was she asked how that is an impediment in this case where there have always been two court officers present. She ultimately conceded that the only alternative which she considered was that Mr. Madray be held in isolation.

[36] Officer Prasad advised me that she made her decision to order Level 3 strip searches immediately after my ruling. As we broke soon after my ruling to proceed with jury selection it seems that to date Mr. Madray has been subjected to seven strip searches. It is clear that if this trial proceeds, Mr. Madray will be subjected to further Level 3 strip searches, a minimum of four per day, for the balance of the trial which will continue for several more days if I do not grant this application. Assuming five more days of trial, that would bring the number up to 27 strip searches!

Analysis

The Right of a Defendant to Sit at Counsel Table

[37] Commissioner Kaufman made recommendations concerning where an accused person may sit during his or her trial in his report of the Commission on Proceedings involving Guy Paul Morin 1998, vol. 2, 1167-68. Recommendation 83 of the Kaufman Commission states: “Absent the existence of a proven security risk, persons charged with a criminal offence should be entitled at their option to be seated with their counsel, rather than in the prisoner’s dock.”

[38] I do not intend to do an exhaustive review of the law in this area. In R. v. M.T., [2009] O.J. No. 3424 (Ont. S.C.J.), Mr. Justice Nordheimer concluded that:

As a general proposition, absent any specific security concerns an accused person ought to be able to sit at counsel table. I arrive at that conclusion for a number of reasons. For one, it accords with the Kaufman Commission recommendation. I would not easily dismiss such a recommendation emanating as it does from a thorough and important public inquiry into one of the most serious errors of the justice system in this province.

[39] Justice Corbett reviewed the law in R. v. Ramanathan, [2009] O.J. No. 6533. Although he outlined the two different approaches of trial judges for in-custody accused in this regard, he concluded that the approach following the recommendation of Commissioner Kaufman is the preferred approach. He came to the conclusion, which I endorse, that the starting point should be that accused persons should be seated at counsel table unless there is a good reason for them to be elsewhere. In the case before him the defendant was charged with second degree murder and had a criminal record, albeit not a serious one. The only concern raised had been the generic one that the greater the defendant had access to other persons in the courtroom the greater the risk he could obtain contraband materials, (at para. 23). Corbett J. permitted him to sit at counsel table behind his counsel since there was no room for him at the table with his counsel.

[40] Justice Corbett also stated at para. 25 that:

[i]t should not be necessary to embark on an inquiry concerning the seating location of an accused person in every trial, or in every trial where an accused person is in custody. If the starting point for analysis is established either by consensus among the trial bench or by appellate decision then I expect the issue will be contentious in only a small minority of cases.

[41] In my experience Justice Corbett’s observation has been adopted and rarely is the issue of where an accused person should sit debated. Usually an accused person is permitted to sit at counsel table with the consent of the Crown. If there are legitimate security concerns the Crown will object and provide evidence in support of its position. This is the first time I have faced a situation where despite the fact that security concerns have been advanced by the security officers, the Crown has not objected to the application.

Law With Respect to Strip Searches

[42] Strip searches are one of the most intrusive manners of searching and also one of the most extreme exercises of police power; see R. v. Flintoff, 1998 632 (ON CA), [1998] O.J. No. 2337 at para. 23 (Ont. C.A.). The Policy recognizes this and acknowledges the law concerning Level 3 strip searches as set out by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81. The court noted the obvious, that:

… it is unquestionable that …[strip searches] represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out but even the most sensitively conducted strip search is highly intrusive. (at para. 83)

…strip searches …involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee’s experience of being strip searched. (at para. 89)

… 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. (at para. 90)

[43] The Crown submits that the Level 3 searches being conducted in this case are a lawful exercise of the ancillary police powers associated with the duty to detain, and to safeguard prisoners.

[44] The court in Golden was dealing with warrantless strip searches incident to arrest and noted that there is a distinction to be made between what is required for those searches as compared to searches related to safety issues in a custodial setting where individuals are “going to be entering the prison population” where there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons “prior to entry into the prison environment”. (at para. 96) The court went on to state:

The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. (at para. 97)

[45] In the passage endorsed by the Supreme Court of Canada Duncan J. stated that he had:

…no hesitation in concluding that strip searching anyone who is entering the prison population is necessary, justified and reasonable. Quite apart from concern about weapons, in my opinion such searches are supportable in order to prevent the arrestee from bringing contraband i.e. drugs into the jail. (at para. 26)

[46] Absent certain circumstances such as those found in some of the short term detainee cases referred to me by Mr. Bloch, I agree with his submission that since Golden, the decisions on point stand for the proposition that it would be the rare case when a strip search would not be justified on safety and security grounds when an accused is entering the prison population. In Flintoff, at paragraph 25 the Ontario Court of Appeal considered an Order or policy of the Durham Police Service to conduct a Level 3 search of all detainees who entered the police station. The court stated at paragraph 25:

It is clear that the policy in the Order was directed to problems inherent in introducing an accused person into the prison population. Such a process raises special problems which it is unnecessary to address in this case. [emphasis added]

[47] Mr. Bloch submits that the phrase "entering a prison population" refers to the likelihood that a person will come into contact with other prisoners. I agree with this. However, it is his position that strip searches can be lawfully performed not only when an accused person enters a prison environment for the first time but also whenever a prisoner is re-introduced into such an environment, particularly if the prisoner is coming from a less secure environment such as the courtroom. With respect in my view, for the reasons that follow that is clearly not a correct statement of the law. Strip searches are only generally recognized as lawful before a person is lodged in a cell at the police station or taken to a jail for the first time, or otherwise introduced for the first time into the prison population. In those circumstances generally speaking, an accused person will be subject to a lawful strip search provided it is done properly.

[48] I have carefully reviewed all of the cases relied upon by Mr. Bloch. It is significant that in most of the cases provided by Mr. Bloch, the strip searches in issue were found to be unlawful and in breach of s. 8 of the Charter. The cases are significant more on the issue of remedy; in most cases a remedy short of a stay was granted. In none of the cases, however, had there been any more than three unlawful strip searches and in none of the cases was it expected that the unlawful strip searches would continue. Given the short time I had to make my decision, I am not able to deal with each case in detail, but suffice it to say that none support his position. I will review those cases I found to be most significant.

[49] I begin with the decision of Trafford J. in R. v. Brown, [1998] O.J. No. 4682 (S.C.J.). He stated that in his view a police officer has the power to strip search a prisoner at a court house facility where:

… objectively viewed, there are reasonable grounds to suspect it is necessary to ensure the safety of persons in the courthouse, to prevent an escape of a prisoner or to otherwise provide for the proper administration of justice. The exercising of such powers must be reasonable and otherwise compatible with the values recognized in the application of the Charter to the custodial context of such prisoners. Recognition must be given to the diminished, but nevertheless extant, expectation of privacy and liberty and security interests of the prisoner. For example, the strip search of a prisoner must be a bona fide one and not one intended to punish, degrade or otherwise harass him/her. These common law powers may be exercised only after consideration is given to the circumstances of the particular inmate. (at para. 12)

[50] In coming to this conclusion Trafford J. acknowledged that the safety of persons at the courthouse, the secure custody of prisoners and the otherwise proper administration of justice are matters of “pressing and substantial concern” and that detention facilities are “unique places…fraught with danger”. (at para. 14) Nevertheless, he stated that:

… discretionary power of the custodial officers requires them to be informed, reasonable and careful in the exercise of the power. Proper regard for the inherent worth of the prisoner and the Charter values impacting upon him/her must be apparent when the power is exercised. Principles of minimization must be respected by the searching/restraining officers. (at par. 14)

[51] I concur with the views of Trafford J. as to the appropriate test to be applied in considering the lawfulness of the strip searches in this case, save that in my view there must be reasonable grounds to believe (rather than suspect) that such a search is necessary. In the case before him Trafford J. found that a second strip search of one defendant who had removed his leg irons was done with lawful grounds albeit in an unlawful manner but that the second strip search of the other defendant who had done nothing out of the ordinary was unlawful.

[52] Mr. Bloch submitted that the decision of R. v. Clarke, 2003 64244 (ON SC), [2003] O.J. No. 3884 (S.C.J.), which has been referred to with approval as recently as the decision of Code J. in R. v. Fuglerud, [2012] O.J. No. 5467, supported his expansive view of what it means to be “entering a prison population.” In Clarke, Justice Ferrier considered the lawfulness of strip searches of three accused persons charged with various offences arising out of a demonstration. The defendant Clarke was strip searched shortly after his arrest when he arrived at the police station. He was strip searched again at the station by two different officers who were unaware of the first strip search. He was held overnight and taken before a justice of the peace. He was strip searched a third time when he was taken to jail.

[53] After a careful consideration of Golden and a number of the other cases I have been referred to, Justice Ferrier reviewed the decision of Trafford J. in Brown and the test that Justice Trafford expressed at para. 12 of his decision which I have already referred to. Ferrier J. held in reference to this test:

…that is the appropriate standard to apply when an accused is going to be entering the prison population. Although each case must be considered on a case by case basis by the police, it would be a rare instance when a strip search could not be justified on safety and security grounds when an accused is going to be entering the prison population. (at para. 93)

[54] In my view Justice Ferrier was clearly referring to the first contact an accused made following his arrest. He saw the issue as whether or not the accused person was expected to be in contact with other persons who were being detained by the state and concluded that “persons being detained by the state is a broad concept”. On this basis he found that the first strip search of each accused person was lawful.

[55] Ferrier J. found the second and third strip searches of the defendant Clarke to be unlawful. With respect to the third strip search he stated that the previous searches might be irrelevant if the “police could reasonably claim that there was a risk that an accused had acquired contraband while in the dock during their bail hearing” but there had been no evidence on the point. (at para. 109)

[56] In Fuglerud, Justice Code upheld the decision of the trial judge that a strip search of the defendant at the station was lawful given his ongoing refusal to attend court and to attend for fingerprints and photographs, a specific concern that he had drugs secreted on his person and that he would be going to bail court and as such in contact with other prisoners. This, however, was the one and only strip search and as Justice Code observed, once the lawful decision had been made to hold the defendant for a bail hearing there was nothing “rare or exceptional about the facts that would exempt Fuglerud from the need for a reasonably conducted strip search”. (at para. 23)

[57] In R. v. A.B., 2003 35574 (ON SC), [2003] O.J. No. 2010, Justice Durno considered an appeal in a case where the defendant had been strip searched once at the station following his arrest and then a second time on arrival at court. Mr. Bloch relies on Durno J.’s statement that:

I accept that there are persons detained in custody for bail hearings for a very wide variety of offences, with equally various backgrounds and mental make-ups. On this record, the evidence of the officer in charge of the cells provided a basis upon which to conclude there were compelling reasons to search all prisoners going into the cells. While an argument could be made that prisoners should not all be searched, the decision whether to strip search would often have to be made on incomplete information. In addition, in many facilities such as the Davis Court House in Brampton, there can be hundreds of persons in the court cells daily. (at para. 29)

[58] This statement, however, was in connection with the first strip search at the station which Durno J. agreed was lawful. He saw little distinction between an accused person being integrated into a general prison population or being taken to court where he could be among persons in custody awaiting their bail hearings, trials of other appearances. However, Durno J. upheld the trial judge’s conclusion that the second strip search was unlawful and violated s. 8 of the Charter. He held that “having been searched once as a person going into the prison population, there was no reason to conduct another strip search as a matter of routine. …If all persons being held in division cells to be transported to court are strip searched … there should be no “routine” second strip search. …[such a practice] violates Charter rights.” (at paras. 30 and 31)

[59] Mr. Bloch also relies on the decision of R. v. Skinner-Withers, [2006] O.J. No. 645, (O.C.J.) where Justice Trotter, as he then was, considered the lawfulness of a pat down search after the defendant had been taken to court for a bail hearing and before he was lodged in the courthouse cell. He had been previously searched by way of pat down searches a number of times. I note in that case that despite an altercation which included the defendant assaulting an officer, that was triggered because the defendant was upset about the number of searches, and despite his criminal record which included convictions for serious violence, the level of search was never escalated. Justice Trotter heard from Officer Prasad in that case and she testified that the Court Services Unit Policy was to perform a pat down search for weapons and contraband on all persons lodged in the cells.

[60] Trotter J. acknowledged that judges have recognized that courthouses are potentially dangerous places, where weapons and contraband are brought with some frequency and that this concern for safety is elevated with respect to court detention facilities. After referring to the comments of Trafford J. held in Brown, supra, at para. 13, he stated:

Detainees must be searched in order to protect other detainees from danger. As the evidence disclosed in this case, inmates are often lodged in cells with other inmates. It is essential that no inmate be in possession of any weapon or device that could be used to harm another inmate. This is the reason why each inmate is searched before being lodged in the cells. These types of searches also ensure the safety of other officers charged with ensuring the safe confinement of all inmates located in court detention facilities. Of course, detainees are brought to court facilities for the purposes of attending in courtrooms, which are generally open to the public. The safety of all of those who participate in court proceedings (including court