ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Crim J(F) 296/13
DATE: 20141212

B E T W E E N:

HER MAJESTY THE QUEEN

David Wilson, for the Crown

• and -

SIMONE ELIZABETH FOSTER

Byron Alvares, for the Accused

The Accused

HEARD: November 25, 2014

REASONS FOR VOIR DIRE RULING - CHARTER OF RIGHTS SECTION 8

Justice Thomas A. Bielby

INTRODUCTION

1On May 11, 2012, the accused Ms. Foster was arrested for importing cocaine into Canada. On that date, she travelled by airplane from Jamaica to Toronto Pearson International Airport and, upon inspection, officers of the Canada Border Service Agency (CBSA) discovered she had approximately 1.2 kilos of cocaine hidden in the bra she was wearing.

2CBSA Officers Morgan and Fletcher conducted a strip search of the accused and shortly thereafter transferred custody of the accused to RCMP Officers Smith and Gedny.

3The accused was escorted to the RCMP airport detachment and was placed in a cell. Officer Gedny, a female, conducted a further strip search of the accused. The door of the cell remained open to the hallway and the search was video recorded by a security camera located in the cell.

4The accused submits that this second search was unreasonable and as such, was a violation of section 8, of the Canadian Charter of Rights.

5After Ms. Foster was strip searched by the RCMP she was questioned by Officer Smith. The interview, referred to as Ms. Foster’s statement, was video and audio recorded. Counsel for Ms. Foster submits that even though there is no causal connection between the search and the statement, the statement should be excluded. The complicating factor is that counsel for Ms. Foster did not raise the Charter issue until after the jury viewed and heard the recorded statement.

FACTS AND DISCUSSION

6Officer Gedny testified that she left the cell door open to allow her to get out of the cell quickly if need be and to allow someone to come quickly to her assistance, if required.

7Officer Gedny testified the camera in the cell is necessary for the safety and protection of both officer and accused. She also said that she, as the only available female police officer, was the only one conducting the search and the recording of the search would provide a record.

8It would appear that the officers did not discuss the circumstances of this case and whether a strip search was necessary. The officers did not make notes of such a discussion and none could recall such a discussion. It would seem that the two male officers just assumed that Officer Gedny, as the female officer on duty, would conduct a strip search of Ms. Foster.

9Officer Smith testified that no supervisor was available and that, while he was the lead investigator, he was not the superior of Officer Gedny and was not acting in a supervisory role.

10During the search, the exact whereabouts of the two male RCMP Officers Smith and Dionne is not specifically known. Officer Smith testified that he was likely by the door of the hallway to the cells, listening in case Officer Gedny needed assistance.

11The monitor for the detachment cameras is located in a small interior office. The location of the monitor would make it difficult for anyone looking in the office window to see the monitor. However either male officer or both could have been in the small interior office when the search was being conducted. Each testified that, had the search been on the monitor when they were present in the office, they would have immediately switched the monitor to another camera feed.

12Both Officers Smith and Dionne testified that they did not view any part of the search, on the monitor or elsewhere. I accept that. Further, I accept that there was no one else in the detachment at the time of the search. The only way to enter the detachment is by use of a pass card and the cards are only distributed to officers assigned to the detachment.

13I find that none of the RCMP officers were aware the CBSA officers had conducted a full strip search. Whether that is the fault of the CBSA officers or the RCMP officers I do not know. Such information should have been exchanged when the RCMP officers took custody of the accused from the CBSA officers.

14Officers Smith and Gedny knew that a CBSA officer had frisked the accused and that something hard was discovered in the bra of the accused. The bra was delivered to the RCMP when they took custody of the accused suggesting some type of physical search of Ms. Foster. However, details of the actual strip search conducted by the CBSA officers were not known by the RCMP officers.

15In May 2012, Officers Smith, Gedny and Dionne were unfamiliar with or unaware of, any written policy or protocol in regards to strip searches. Exhibit 5 is an excerpt from the RCMP Operations Manual relating to strip searches, but is dated, February 13, 2013. The policy in place in May 2012, if in fact there was one, was not produced. Officer Dionne testified that he had only read the current policy, for the first time, just prior to testifying.

16Officers Gedny and Dionne testified that strip searches are conducted routinely in cases of drug importation - they always do them. While Officer Smith testified that such a search would be warranted if drugs are found on the person of a detainee, like Ms. Foster, I find that, with respect to these officers, strip searches are routinely done in drug importation cases.

17Officer Gedny testified that the search involved two steps. The accused was asked to remove the clothing on the upper part of her body and the items of clothing were inspected. Once that is completed, Ms. Foster was allowed to put back on her upper body clothing and was then asked to remove her lower body clothing.

18Officer Smith testified that strip searches are necessary for officer and detainee safety and to gather evidence. He also noted that the Peel Police, to whom custody of Ms. Foster would be transferred for court and bail purposes, would expect and rely on the fact that the RCMP would conduct all such searches. Yet the RCMP, it would appear, does not rely on the officers of the CBSA to conduct the appropriate searches.

19Officer Gedny took no notes relating to the search other than noting a search was conducted explaining that she could not take notes as she was conducting the search. Nor did she make notes immediately after the search was completed.

20No supervisory authorization was sought for the strip search. No supervisor was on shift or available, nor was another female officer to assist.

21All three officers testified that during training they were told that if drugs are found on one part of the body of a detainee, the likelihood is there are drugs hidden somewhere else on the body. This is referred to as, the one plus one principle or theory. The officers, however, could not recall ever finding a second location where drugs were found on a detainee, when conducting a strip search.

22Ms. Foster testified that she knew there was a camera in her cell. She said the cell door was opened and anybody walking by would be able to see the search. She testified that at some point she had to sit on the toilet and change a sanitary napkin in plain sight of Officer Gedny and within camera view.

23Ms. Foster testified that she felt uncomfortable in the circumstances. She is young and without a criminal record and had never previously been the subject of a strip search. She conceded however that the search had no real impact on her and her recorded statement made shortly after the search.

24Ms. Foster also testified that Officer Gedny was, at all times, polite and provided assistance whether in regards to providing a sanitary napkin or food and drink.

25This matter first proceeded to trial in June 2012 which resulted in a mistrial because the jury could not reach a verdict. The accused at that time did not challenge the reasonableness of the second strip search. In the current proceedings, as noted previously, the search was not challenged until after the jury watched and listened to the recorded statement. The challenge was not initiated until Officer Gedny testified for the first time that there were video cameras in the cells. Defence counsel advised the court that this was the first time he was aware that the strip search of his client was video recorded.

26Notwithstanding the timing of the section 8 Charter breach, I have determined that the accused had a right to the voir dire to determine the reasonableness of the search and whether the statement should be excluded.

27It is not a surprise that video cameras are installed in police stations and specifically, in cell areas. Security and safety demand it. Counsel for Ms. Foster submits the search should have been conducted in a private area not within camera range and employing a second female RCMP officer. I do note the strip search conducted by the CBSA was done in the presence of two female officers and no evidence was lead that the search was video recorded.

28For the purposes of this voir dire, it is unnecessary for me to determine whether strip searches should be video recorded or that two officers of the same gender as the detainee should be tasked with conducting the search. However, if video cameras are in use, some protocol should be in place and reasonable step taken to ensure a detainee’s privacy both at the time of the search and afterwards. The manner of storage and who has access and under what circumstances would also be relevant.

29Officer Smith testified that all he knew was that such video recordings are kept at the London, Ontario detachment and are kept for sixty days. He only acquired this information after the issue of the unreasonableness of the strip search was put before the court. What is not known is what happens after sixty days and if anyone sought a copy of the video recording of the accused’s strip search.

POSITION OF THE PARTIES

30Counsel for Ms. Foster submits that the strip search was unreasonable and that his client’s section 8 Charter rights were violated. He submits that pursuant to section 24(1) of the Charter, a stay of proceedings ought to be ordered. Alternatively, he submits that, pursuant to section 24(2), the evidence of the statement should be excluded and because the jury has already viewed the recording, a mistrial is the appropriate remedy.

31Crown counsel submits that there has been no section 8 breach and that, even if there was, a stay of proceedings would not be appropriate. In regards to section 24(2), he submits that recorded statement ought not to be excluded.

ANALYSIS and CASE LAW

32R. v. Muller 2014 ONCA 780 was released on November 7, 2014. The Ontario Court of Appeal ruled that the strip search of Mr. Muller failed constitutional muster and should have been subjected to a section 24(2) analysis (para. 5).

33Mr. Muller was first frisked search and no drugs or drug paraphernalia were found. The investigating officer then decided Mr. Muller should be strip searched and, during which, drugs were found.

34The Appeal Court stated, at para. 54,

Different types of searches raise different constitutional considerations: the more intrusive the search, the greater the degree of justification and constitutional protection appropriate; Golden, at para. 88; R. v. Simmons [1988] 2S.C.R. 485, at p. 517.

35From paragraph 55, I quote,

Section 8 of the Charter has, as its purpose, the protection of individuals from unjustified state intrusions on their privacy. It follows that we must have some means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred in the first place; Golden, at para. 89; Hunter v. Southern Inc. 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 160. The importance of preventing unjustified searches before they occur is especially acute for strip searches. They involve a significant and direct interference with personal privacy and can be humiliating, embarrassing and degrading for those subjected to them: Golden, at para 89.

36From paragraph 58, I quote,

The mere possibility that an individual may be concealing drugs on his person is not sufficient to justify a strip search of that person: Golden, at para. 94. Further, strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within s. 8 of the Charter. Compelling reasons, rooted in the circumstances of the arrest, are required to render a strip search reasonable, even where the execution is flawless: Golden, at para. 95.

37In the Muller case, the Court of Appeal upheld the decision to conduct a strip search that was incidental to arrest. The Appeal Court agreed that the trial judge was not in error in concluding the search was necessary and that sufficient grounds existed. (para. 73).

38The Court of Appeal then considered the reasonableness of the manner of the strip search. The search was conducted by two police officers of the same gender, at the police station. The search was videotaped. The door of the room where the search was conducted was left open which left the accused, who faced the door, visible to anyone who passed by. The search could be viewed by others (camera monitors) and there were no rules in place governing access to the videotape of the search. The search was conducted, one piece of clothing at a time until the accused was naked. As noted previously, the search of Ms. Foster was conducted in a two-step process.

39It was also noted in Muller that the investigators did not seek approval from anyone in a supervisory capacity to conduct a strip search.

40At paragraph 81, the Appeal Court set out the guidelines for a strip search, as established in R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, and concluded the manner of the strip search was not carried out in a reasonable manner. The Appeal Court in Muller, at paragraph 83, listed the following deficiencies:

1. There was no supervisory authorization sought;

2. The door was left open;

3. The accused was required to stand naked, facing a hallway accessible by other persons of either gender (in the case of Ms. Foster she would only be half naked);

4. The search was videotaped and available for viewing by others at various places in the station. The evidence was unclear about whether the appellant had been informed that he was being videotaped; and

5. Apart from the videotape, there was no adequate record kept of the search.

41In Muller, the Appeal Court sent the matter back for a new trial because the record was insufficient to do a section 24(2) analysis.

42I have relied heavily on the Muller decision because it is so current and has significant similarities to the case before me.

43I find that the strip search conducted by Officer Gedny was unreasonable and violated Ms. Foster’s section 8 Charter rights. The reasons set out by the Court of Appeal, as enunciated above, are equally applicable with the noted exception that Ms. Foster was not left fully naked.

44Further, the RCMP failed to ascertain from the CBSA whether a strip search had been conducted and whether a second search was necessary. The search of Ms. Foster was done as a matter of routine. A suspicion that drugs may be hidden somewhere else does not validate conducting a strip search.

45As noted in R. v. Ebanks 2012 ONSC 5002, [2012] O.J. No. 4619, at paragraph 42, there were no reasonable grounds for a second search since Ms. Foster was in custody from the time of the first strip search forward and would not have had an opportunity to acquire or hide on her person any other contraband.

46The RCMP officers were unaware of any written policy in regards to strip searches, if one existed, and were unaware of any search guidelines such as were expressed in R. v. Golden and countless cases thereafter.

47I accept that the officers did not, knowingly, conduct an unreasonable search but the supervision and training and officer knowledge in regards to strip searches is lacking. Such searches cannot be approached as routine but rather, the need for such a search needs to be considered together with the circumstances of an accused.

48R. v. Jackman [2012] is a decision of Dawson J. of this court. Ms. Jackman was the subject of two strip searches, the first by officers of the CBSA. She was menstruating at the time. The second search conducted by the RCMP and although found to be done in an appropriate manner was ruled to be done as a matter of routine. No thought was given to the need for such a search given the circumstances of Ms. Jackman, especially given the cocaine was found in Ms. Jackman’s luggage.

49Dawson J. declined to do a section 24(2) analysis in relation to the section 8 violation because the evidence in issue was excluded for other Charter violations.

50I conclude that the strip search and the manner in which it was exercised were unreasonable and breached Ms. Foster’s section 8 Charter rights.

51With respect to the appropriate remedy, I am not prepared to order a stay of the proceedings. Given the facts of this case, especially the circumstances and timing around the bringing of this application, I cannot conclude that a stay is justified in the circumstances. This application ought to have been brought before or at the beginning of the first trial. Knowledge that the search was videotaped was not necessary to raise the issue of whether the search was reasonable. And, as I noted earlier, Ms. Foster knew there was a camera in the cell at the time of the second search. Such facts mitigate against a stay.

52I also note that in Muller the Ontario Court of Appeal, with similar concerns, would have likely conducted a section 24(2) analysis had the record been sufficient enough.

53The strip search did not result in the collection of further evidence. While the statement was taken shortly after the search and, while it may be connected to the search temporally and contextually, it was not causally connected to the search. No evidence resulted from the search.

54A stay is to be ordered only in the clearest of cases (R. v. Deveau [2014] O.J. No. 3034).

55At paragraph 87 in R. v. Mok 2014 ONSC 64, [2014] O.J. No. 44, Boswell J. of this court discusses the criteria for a stay. The second of said criteria states that for a stay to be ordered there needs to be no other remedy reasonably capable of removing the prejudice caused by the alleged abuse. Section 24(2) provides such a remedy.

56For these reasons, I conclude a stay of proceedings is not appropriate.

57Turning know to a section 24(2) analysis, the recorded statement of Ms. Foster can be linked in a meaningful way to the Charter violation. The search and the recorded statement are part of the same chain of events. (see The Law of Evidence by David M. Paciocca, para. 5.1)

58At paragraph 16 of the Deveau case, Howden J. of this court states, “The framework of principles for the nexus required by section 24(2) specifically state that no element of causality is necessary.” In Deveau, an accused who was arrested for having an illegal amount of alcohol in her blood was detained in a cell for one and a half hours before the breath test was administered. She was subject to continuous video monitoring even when she went to use the toilet.

59Sitting on the summary conviction appeal, Howden J. found there was a temporal connection and determined the trial judge was correct in finding the accused’s right to privacy was violated and the breath test results were to be excluded.

60In R. v. Flintoff 1998 632 (ON CA), [1998] O.J. No. 2337 (ONCA), the accused was detained for impaired driving and was strip searched in accordance with standard police policy. The Court of Appeal, at paragraph 23, considered the search to be a flagrant breach of section 8 and the violation would shock the public.

61At paragraph 30 the breach was held to have a strong temporal connection to the taking of the breath sample and was found to be an integral part of a single transaction.

62I find that the strip search conducted by the RCMP and the recording of Ms. Foster’s statement were an integral part of the same transaction and there existed a temporal connection. A section 24(2) analysis is appropriate.

63In R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada reframed the necessary section 24(2) analysis. I must consider the following criteria:

1. The seriousness of the Charter infringing conduct;

2. The impact of the breach on the Charter protected interests of Ms. Foster; and

3. Society’s interest in the adjudication of the case on its merits.

64The Charter-infringing conduct is very serious. A strip search is a very significant violation of the right to privacy and Ms. Foster’s right to be protected from unreasonable search. A strip search is the most invasive of searches.

65I also find that the breach, to some extent, to be institutional or systematic based on the testimony of the RCMP officers. They were unaware of any policy or protocol in regards to strip searches and carried them out as a matter of routine. They did not consider whether or not a second search was necessary in the circumstances or that a previous search had been conducted. Either their training was insufficient or they failed to avail themselves of the necessary information and training.

66In regards to the impact of the breach on the Charter–protected interests of Ms. Foster, at the time of the breach, it was known that cocaine had been located in the bra she had been wearing. She attempted to re-enter Canada with cocaine on her person. Given such circumstances, the impact on the breach, in my mind, is less significant. I find that the breach did not impact on the demeanour or attitude of Ms. Foster when her statement was recorded. The illegal search discovered no further evidence to implicate Ms. Foster. Ms. Foster testified that the search made her feel uncomfortable but admitted that Officer Gedny was polite and saw to her needs.

67In regards to society’s interest in the adjudication of the case on its merits, if the statement was excluded, the Crown still has a case. Generally, given the impact drugs such as cocaine has on our society, there is a heightened interest in the prosecution of this case.

68My analysis of the second and third criteria suggests that the evidence of the recorded statement should not be excluded.

69However, the seriousness of the breach overwhelms the other two considerations. The actions of the RCMP officers in relation to the second search, while not intentional, reflect a troubling lack of knowledge of the law and the principles to be applied to strip searches. The Golden decision was released 13 years ago yet no regard was given to the guidelines. The strip search was conducted as routine without regard to the specific circumstances of Ms. Foster. It was not necessary as one had previously been carried out and Ms. Foster had been in continuous custody since then.

70While the public has an interest in the adjudication of the case on it merits, an educated public would demand better police practices.

RULING

71The seriousness of the breach is so significant that the evidence acquired after the breach, the recorded statement, ought to be excluded.

72As the statement has already been viewed by the jury, the only recourse was to declare a mistrial, which I did on November 25, 2014 with reasons to follow.