ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1707/13
DATE: 20140523
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY MICHAEL CHARLES POIRIER
MICHAEL ROBB, for the Crown
KENNETH MARLEY, for the Jeffrey Michael Charles Poirier
HEARD: April 28 and 29, 2014
DESOTTI, J.
A. The Facts
[1] The accused, Jeffrey Michael Charles Poirier, is charged with a five count indictment as follows:
THAT he, on or about the 6th day of December, 2012, at the City of Sarnia, in the Southwest Region, in the Province of Ontario, did unlawfully possess a controlled substance included in Schedule I, to wit: Heroin, for the purposes of trafficking, thereby committing an offence contrary to Section 5(2) of the Controlled Drugs and Substances Act.
THAT he, on or about the 6th day of December, 2012, at the City of Sarnia, in the Southwest Region, in the Province of Ontario, did unlawfully have in his possession a controlled substance included in Schedule I, to wit: Methamphetamine, for the purposes of trafficking, thereby committing an offence contrary to Section 5(2) of the Controlled Drugs and Substances Act.
THAT he, on or about the 6th day of December, 2012, at the City of Sarnia, in the Southwest Region, in the Province of Ontario, did unlawfully have in his possession a controlled substance included in Schedule I, to wit: Cocaine, for the purposes of trafficking, thereby committing an offence contrary to Section 5(2 of the Controlled Drugs and Substances Act.
THAT he, on or about the 6th day of December, 2012, at the City of Sarnia, in the Southwest Region, in the Province of Ontario, did unlawfully have in his possession a controlled substance included in Schedule I, to wit: Hydromorphone, for the purposes of trafficking, thereby committing an offence contrary to Section 5(2) of the Controlled Drugs and Substances Act.
THAT he, on or about the 6th day of December, 2012, at the City of Sarnia, in the Southwest Region, in the Province of Ontario, did unlawfully have in his possession a controlled substance included in Schedule I, to wit: Methadone, thereby committing an offence contrary to Section 4(1) of the Controlled Drugs and Substances Act.
[2] The accused pleads not guilty on all counts and brings this application under the Charter of Rights and Freedoms that his rights, under sections 7, 8, and 9, of the Charter were violated by the Sarnia Police Services through their actions and conduct on December 5th, 6th, and 7th, 2012 and thus seeks, pursuant to section 24 (2) of the same Charter, to exclude any evidence obtained through the use of a general warrant obtained under s. 487. 01 (1) of the Criminal Code.
[3] Counsel for the accused acknowledges that this is a novel application, although on these facts similar circumstances have existed at border crossings for years with many resulting decisions that have been pursued through the courts, including the Supreme Court of Canada.
[4] The accused, was under police scrutiny and pursuant to a General Warrant obtained on the 20th of November, 2012, he was to be arrested on December 5th, 2012 for trafficking offences under the C.D.S.A. Eventually, he was discovered at a residence that was associated with drug use and then followed on his bicycle onto Indian Rd. in the City of Sarnia where he was arrested by officer Urban.
[5] The accused was then brought to the Sarnia Police detachment where he was shown and read the General Warrant. He was then strip searched, allowed to contact his lawyer and then lodged in a dry cell. During the strip search, the accused indicated that he was assaulted by Sarnia Police Services. The officer who administered the strip search, Constable Skin, denies this assertion and coincidentally a video tape recording of the strip search, does not seemingly indicate any assaultive behaviour.
[6] Regardless, the entire thrust of this application is that the accused should not have been placed in a dry cell pursuant to a General Warrant that was issued by an Ontario Court judge to await a bowel movement that based on significant evidence obtained from five reliable drug sources would produce from the anal cavity various packages of drugs.
[7] Instead the application questions the validity of the General Warrant, particularly since the accused was not brought before a Justice of Peace pursuant to s.503 of the Criminal Code. On the other hand, the Crown asserts that given the excellent source information that was received by the lead investigating officer about where and how the accused delivered and stored drugs, no other reasonable alternative procedure was feasible.
B. Case Law Analysis
[8] Although there were numerous decisions that I have reviewed, I have only referred to certain decisions in my reasons, which I considered either factually or because of some point of law was useful to me in coming to my decision.
[9] In R. v. Monney, a decision of the Supreme Court of Canada, an accused, who was under suspicion at Canada Customs for drug smuggling, was brought to a “drug loo facility”, an apparatus similar to a toilet which permits custom officers to process fecal matter and isolate any narcotics. The accused was advised that he would remain in detention until either a clean urine test was provided or a clear bowel movement satisfied the officers that the accused had not ingested drugs. Eventually, the accused excreted 84 pellets containing heroin.
[10] None of the officers present knew that the proper protocol was to have a qualified medical practitioner present because of the danger that existed of a drug overdose. The Supreme Court of Canada concluded that there were three types of border searches. There was category one where there was questioning, search of luggage and a pat or frisk of the outer clothing; the strip or skin search conducted in private and with the permission of a custom officer with authority; and the third category, which was a body cavity search with recourse to medical personnel, X-rays, emetics and other highly evasive means. The Court concluded that the “loo vigil” amounted to a secondary category of incursion.
[11] Most significantly, the Court concluded that although the accused was deprived of his physical liberty during this detention, he was not deprived of the liberty to make his own decisions about his health, regardless of whether he made a decision which was contrary to his best interests. Constitutional protection of life and security of person pursuant to s. 7 of the Charter does not extend to providing access to medical supervision during a passive bedpan vigil over and above the rejection of medical attention by the suspect.
[12] In this case, there was no acknowledgement by the accused that he had secreted drugs in his anal cavity. However, there were three packages of controlled substances discovered within this first 24 hour period. The first two packages were methamphetamines each weighing 28.2 grams and were collected at 11:53 A.M. on December 6th. The third package was a package of heroin weighing 28.4 grams and was retrieved on December 6, 2012 at 1:32 P.M. All of these three packages of drugs were obtained from the anal cavity of the accused within the first 24 hours of his arrest on 1:32 P.M. on December 5th, 2012.
[13] In addition, and throughout the course of this investigation, including the “Investigative Plan” the officers involved were quite aware that they had to be live to the possibility that one or more of the packages that had been inserted into the accused’s anal cavity might rupture and cause him a medical difficulty.
[14] I have also reviewed a number of decisions where a rectal examination was part of the process adopted by police to determine if the arrested party had secreted drugs in his anal cavity. More particularly, in Greffe v. the Queen, a decision of the Supreme Court of Canada, there is some indication that only very narrow circumstances would exist that would justify this type of search.
[15] Specifically reference was made to a “bedpan vigil” that might be a preferred method of the recovery of secreted drugs than a rectal examination... The majority or four Supreme Court Justices affirmed the trial judge’s view that the discovered heroin should be excluded under s. 24 (2) of the Charter, while the minority of three Justices would have admitted the discovered evidence of drugs from the rectal search.
[16] I would also note that in the decision Reyen v. Antonenko et al., the attending physician who conducted the rectal examination indicated at page 345 as follows:
The doctor testified that such an examination as that performed requires the co-operation of the patient and that he would never try such an examination without the patient’s full co-operation.
[17] Again, the procedure that was followed was less intrusive than a rectal examination that could not or should not be attempted without the consent of the accused. Inferentially, in light of the resistance by the accused to either retrieve the drugs from his rectal cavity or have an appropriate bowel movement, the “wait and see vigil” or “loo vigil” in retrospect, seems to be a most reasonable approach.
[18] The case of R. v. Ramsay of the Ontario Superior Court is of some interest only from the perspective of what was done at Customs to the accused who was suspected of smuggling drugs by swallowing pellets containing marijuana. A “bedpan vigil” was undertaken by the Custom authorities and the accused was taken to a “dry loo”.
[19] These same Custom authorities “constantly” offered the accused, Mr. Ramsay, food and drink. Counsel for the defence argued that these offerings of food and drink were inducements on par with emetics. Justice Wein determined that this submission bordered on the absurd. Contrary to this submission, Justice Wein concluded that had they not offered food and drink to the accused, that conduct could be construed as being improper. At paragraph 28, she concluded as follows:
The fact that the officers also hoped that Mr. Ramsay would eat or drink water in order to speed up the inevitable process does not in any way turn this into an invasive search.
[20] The officers in this case were also aware of the medical risk to the accused and advised the accused of such a risk.
[21] In R. v. Teuvo Antero Kuitenen and Eugene Ostiguy, Justice Oppal of the British Columbia Superior Court, analyses the history of the enactment of s. 487.01 of the Criminal Code. He affirms that only a provincial court judge or a Superior Court judge may issue this warrant and that with the wide powers that it contains is also the need or requirement for significant safeguards. The governing principle is that it can only be granted if “it is in the best interests of the administration of justice”.
[22] In effect as Justice Oppal indicated, the issuance of a General Warrant pursuant to s. 487.01 undoubtedly will violate s. 7, s. 8 and s. 9 rights of an individual under the Charter of Rights and Freedoms. For those reasons, any application to obtain this type of warrant must satisfy all the requisite safeguards contained within this section.
[23] Likewise, in R. v. Ha of the Ontario Court of Appeal and R. v. Brand of the British Columbia Court of Appeal, the police needed the use of a General Warrant pursuant to s. 487.01 of the Criminal Code to conduct covert and temporary access to certain properties. The Supreme Court of Canada indicated, in Telus Communications Company v. The Queen, with respect to those decisions at paragraph 69 as follows:
Fundamentally, in each instance, the request for covert access and temporal flexibility made clear that the substance of the investigative techniques for which authorization was sought differed from what could be authorized under a conventional warrant.
[24] Similarly, Justice Watts of the Ontario Court of Appeal in R. v. Li upheld General Warrants that were utilized by the police to enter upon various properties that were owned by the accused and used video cameras to record what they observed at these properties. These observations through the use of these video recordings together with other investigations led to the issuance of search warrants for each of these properties and the subsequent arrest and then convictions of the accused.
C. Analysis and Decision
[25] Succinctly, the information provided by five reliable confidential informants was that the defendant used his anal cavity to conceal the controlled substances, that he sold the controlled substances once he was in the residence of the buyer and returned the controlled substances to his anal cavity once the transaction was completed. In addition, the police also conducted surveillance on the accused that confirmed the movement of the accused about the City of Sarnia in the manner described by the informants.
[26] There is no issue that officers from the Sarnia Police Services had reasonable grounds to effect an arrest. What is challenged was the manner and process utilized by these officers to obtain the drugs that they had good reason to believe were stored in the accused’s anal cavity.
[27] The General Warrant that was obtained under s. 487.01 on November 20th, 2012, is an exceptional remedy. Thus, the first complaint or concern raised by counsel for the defence is that the recitation in the General Warrant does not indicate what authorization is being sought by officer Vosburg (paragraph 25 of defence counsel’s factum subsection (5)).
[28] As much as I agree that the wording of the requested authorization in the first section of the application, after indicating what offences the accused has committed against an “Act of Parliament”, does not seek specifically the authorization to maintain the accused in a dry cell area pending his passing of drugs from his anal cavity, I disagree that a judge of the Ontario Court was not fully aware from the entire application precisely what she was authorizing by issuing this warrant.
[29] In paragraphs 5 (i) and (ii) of the application, the location of the drugs that the accused is said to possess is clearly indicated to be found in his anal cavity (“rectum”) and that he is concealing at that location on his body multiple packages of different types of drugs, and more particularly heroin and/or Crystal Methamphetamine. In addition, this paragraph together with paragraph 6 indicates that only upon providing the officer with a bowel movement that “will satisfy the officer’s belief” that no further drugs are concealed within his anal cavity would his detention in this dry cell be terminated.
[30] There can be no mistake that the warrant authorized the Sarnia Police Services to detain the accused in custody pending a bowel movement or a voluntary extraction by the accused of these multiple packages of drugs secreted in his anal cavity. The period of time for which the warrant authorizes this detention is between November 20th, 2012 and December 19th, 2012.
[31] Furthermore, as a further condition of the warrant, was the affirmation that one of the five sources would have to confirm to the lead officer Vosburg that in fact the accused was indeed in possession of drugs and was dealing same before the warrant would be activated. This affirmation was made by a known source on December 4th, 2012.
[32] A second concern about the issuance of this warrant was that there may have been an alternate method of determining whether the accused was in fact trafficking in drugs, for example, by setting up some undercover sting operation as opposed to the issuance of a General Warrant?
[33] For reasons expressed in the Crown’s factum and submissions to me, together with the information and testimony of the various Crown witnesses and more particularly officer Vosburg, the manner of sale and delivery of the drugs foreclosed this possibility of alternate discovery of these same drugs. For a buyer of a particular drug of choice, the accused extracted from his rectum in the privacy of a washroom this particular drug and then secreted the remaining drugs back into his anal cavity.
[34] This ‘kangaroo method’ of extracting drugs from a cavity, from my perspective, made an alternate approach to the discovery of these drugs impossible. Even an X-ray of the anal area would be a violation of the accused’s body and the security of his person, and in my view, too intrusive and unnecessary a step since it was the extraction of the drug that was the issue not its presence within the accused’s anal cavity. To make this point absolutely crystal clear, there has never been a challenge to the reality that the accused was in possession of illegal drugs. The methodology of the discovery of this drug is in issue through the issuance of the General Warrant.
[35] If the General Warrant is valid, the argument that the accused’s right to be brought before a Justice of the Peace within 24 hours pursuant to s. 503 of the Criminal Code of course must fail. There is no question that this right was breached by keeping the accused in the dry holding cell for a period of 31 hours until he provided a significant bowel movement in response to a question posed by the accused to the officer overseeing him.
[36] The fact that the General Warrant purposefully, definitely, and decidedly indicated that this “wait time” was necessary to secure the drugs from the anal cavity of the accused, was squarely before the Provincial Court judge. To state in the information in the General Warrant that the time period of waiting may exceed the time frame as contemplated within section 503 of the Criminal Code, was and is an obvious inference in respect of this application. Without taking judicial notice that a Provincial Court judge would be most aware of the time frame as contemplated within s. 503 of the Criminal Code, the information contained within the application made this reality apparent.
[37] I accept and fully appreciate the serious concerns that the officers had with the accused and the significant quantity of drugs that the accused had secreted within his anal cavity. Movement of the accused to the Courthouse in Sarnia for a bail hearing would be impractical and negate the security provided by the “dry cell”.
[38] The use of a video bail attendance before a Justice of the Peace and then a request by a Crown for a further three days of investigative detention pursuant to s. 515 of the Criminal Code was one option that might have been utilized. However, I am concerned that the same Justice of the Peace in detaining the accused may have been required to secure the accused at a Provincial institution (the Sarnia jail) and not the “dry cell” at the Sarnia Police headquarters.
[39] A further 12 hours elapsed before the accused was brought before a Justice of the Peace or some 43 hours after his arrest. The accused, after he provided the police with the remaining drugs in his anal cavity, was then housed in a normal holding cell. I do not consider this additional time in custody pending a morning attendance before a Justice of the Peace to be a violation of his Charter Rights. I consider this further 12 hours to be a period of time subsequent to the expiration of the General Warrant and thus within the 24 hour period mandated by section 503 of the Criminal Code.
[40] Even if I am wrong in this conclusion, certainly I would not consider the discovery of drugs in accordance with the General Warrant to constitute a reason to exclude same. I will have more to say about this conclusion as I review other concerns raised by counsel for the accused.
[41] If the rationale for seeking the General Warrant and the information in support of same is significant and compelling evidence that the accused is involved in serious drug activities, then the method of discovering the drugs by using a “dry loo” and waiting for nature to take its normal course, seem to me to be the least intrusive manner in which the evidence of the drugs can be produced.
[42] Given this unusual method of concealing drugs utilized by the accused, I consider the issuance of a General Warrant, the use of a private cell, the pants, and blanket that was provided (even though the cell temperature was 82 degrees Fahrenheit), numerous cigarette breaks, supplying the accused with food and water, and a careful watch to ascertain if the accused was in any medical duress, were most appropriate steps taken by the investigating team of officers.
[43] As a corollary to these actions and conduct, I am equally of the view that the Provincial Court judge who issued the General Warrant was fully apprised of all the nuances, difficulties, and unusual circumstances at play, which led her to approve of the granting of the General Warrant.
[44] Furthermore, even if I am wrong in my analysis about whether a General Warrant should have been issued or granted in these unusual circumstances, and that the officers, who awaited the emergence of the drugs through the facility of a “dry cell” and “dry loo”, based on solid, reasonable and cogent evidence that they possessed and upon which they believed that these same drugs had been secreted within the anal cavity of the accused, Jeffrey Michael Charles Poirier, then I would still not have excluded this real evidence discovered under s. 24 (2) of the Charter.
[45] This approach, if it violated the rights of the accused under s. 7, 8, or 9, based on the factors in R. v. Grant and R. v. Harrison, the real evidence gleaned, the good faith presented by the investigating team of officers, and the seriousness of the offences, would outweigh any possibility that an exclusion order would be considered or granted.
[46] For the aforementioned reasons, I dismiss the application.
“Justice John Desotti”
The Honourable Mr. Justice John Desotti
Released: May 23, 2014
COURT FILE NO.: 1707/13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEFFREY MICHAEL CHARLES POIRIER
REASONS FOR JUDGMENT
DESOTTI, J.
Released: May 23, 2014