CITATION: R. v. McKanick, 2015 ONSC 2128

COURT FILE NO.: CR-14-137

DATE: 20150402

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BAILEY MCKANICK and JUNIOR LEE

Defendants

C. Noordegraaf, for the Crown

P. Bacchus, for the Defendant Bailey McKanick

F. Lyons, for the Defendant Junior Lee

HEARD: December 15-19, 2014, February 3, 4, 25, 26 and 27 2015

J.R. McCARTHY J.

[1] Junior Lee (JL) and Bailey McKanick (BM), hereinafter referred jointly as “the Applicants” and/or separately as JL and BM respectively, are co-accused on various charges stemming from a police investigation, search and take down that took place between October 21 and October 24, 2012.

JL’s Application

[2] JL seeks a finding and declaration by this court that his rights under Sections 7, 8, 9, 10(a) and 12 of the Canadian Charter of Rights and Freedoms (“the Charter”) have been infringed or denied by the Barrie Police Services (“the BPS”). Particulars of the infringements are as follows:

• Arbitrary detention and arrest without reasonable and probable grounds;
• Failure to inform JL of the reason for his detention within a reasonable period of time;
• Excessive use of force on JL at roadside take down;
• Illegal strip searching of JL at the roadside;
• Illegal strip search of JL while he was completely naked at BPS;
• Unreasonable search and seizure of evidence from a residence belonging to JL without reasonable and probable grounds.

[3] JL seeks remedies under Sections 24(1) and 24(2) of the Charter staying the proceedings against him and/or excluding all evidence obtained resulting from the unreasonable or illegal searches.

BM’s Application

[4] BM seeks a finding and declaration by this court that her rights under sections 7, 8 and 9 of the Charter have been infringed or denied by the BPS. Particulars of the alleged infringements are as follows:

• Improper detention, arrest and strip searches;
• Unreasonable search and seizure constituting a violation of BM’s right to life, liberty and security of the person.

[5] BM seeks an order excluding the evidence illegally obtained or an order staying the proceedings against her.

Factual Background

[6] At approximately 11:15pm on October 23, 2012, following a vehicle box in on Dunlop Street East just west of the traffic lights at Hart Drive, the Applicants were apprehended in a take down by officers of the BPS. At the time, JL was the operator of a red Suzuki motor vehicle, bearing Ontario license plate number APVK399 (“the Suzuki”) in which BM was a front seat passenger. Both Applicants were placed under arrest on charges of possession of cocaine for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”). Roadside pat downs and searches were performed. Searches of the Applicants at the BPS revealed a quantity of crack cocaine on the person of BM and a quantity of marihuana on the person of JL. On the strength of an information to obtain prepared by Detective Constable Wentzell dated October 24, 2012, police obtained and executed a search warrant at premises associated with JL at 1611-88 Park Lawn Road, Toronto (“Park Lawn”). The keys seized from JL upon arrest opened both the door of the unit and a safe in the master bedroom. Police discovered significant quantities of crack cocaine and powder cocaine together with over $12,000 in Canadian currency which included three bills used as buy money for an undercover purchase of cocaine from a suspected customer of JL in Barrie on October 21, 2012.

Evidence

[7] The court heard evidence from most of the police officers involved in the investigation and the take down. That evidence is summarized below.

Detective Constable Wentzell (DCW)

[8] DCW has been an officer with the street crime and drug unit of the BPS since April 2010. On October 21, 2012, acting in an undercover capacity, he contacted John Minor (JM), an individual suspected of selling crack cocaine out of a residence at 104 Mulcaster Street, Apartment 2, in Barrie (“Mulcaster”), for the purpose of a drug purchase.

[9] Following a meeting with JM at a nearby convenience store, DCW was instructed to wait outside Mulcaster. A short time later, the Suzuki pulled into the driveway of Mulcaster. JM entered the vehicle for a minute and then returned inside the premises. A moment later, DCW received a text message from JM that read: “your dope is here.”

[10] This led to surveillance of the Suzuki over the next two days.

[11] At 11:15pm on October 23, 2012, the “take down” of the Suzuki took place after it entered into the city of Barrie along Dunlop Street East from Highway 400 north. DCW participated in the box in of the vehicle..

[12] DCW came up to the Suzuki wearing a police vest and police baseball cap. The windows on the vehicle were heavily tinted. He found the rear doors locked. DCW used his baton to smash the driver-side front and rear windows. He yelled out, “police, show us your hands!”. DCW discovered JL and BM in the driver and passenger seats respectively. DCW took hold of JL’s left arm and instructed him to exit the vehicle. JL put up a struggle by withdrawing his left arm. Fearing the presence of a weapon or an intention to destroy evidence, DCW delivered a single punch to JL’s face before he began to forcibly remove JL from the vehicle.

[13] At the same time, other officers involved in the take down were yelling, “open your hands”. JL continued to resist being removed from the vehicle. DCW delivered another quick blow to his face. JL was then controlled on the ground outside the vehicle. DCW conducted a brief search of JL for weapons and drugs by lifting the band of his baggy pants and underwear for a couple of seconds. DCW did not pull down JL’s pants or underwear. No passerby or member of the public could have observed the search.

[14] In cross-examination, DCW admitted that he did not identify either the driver or any occupant of the Suzuki on October 21, 2012. Although he had received some training in takedowns, he explained that take downs are situational. DCW’s police vehicle contacted the Suzuki from behind while travelling at approximately five kilometers per hour. The “police” marking on DCW’s vest was one to two inches wide and eight inches long. DCW sported no police badge at the take down.

[15] Although he did not see Detective Constable Wyville (DCWY) in the back seat of the Suzuki when he smashed its rear driver’s window, DCW does recall seeing DCWY in the back seat saying “open your hands” shortly after DCW had grabbed JL’s left arm.

[16] The grounds for JL’s arrest were:

(1) His known membership in a gang;

(2) His suspected drug dealings;

(3) The information from confidential informants and;

(4) The observations made of the Suzuki over the days preceding the takedown.

[17] DCW did not deliver any facial blows to JL until JL began resisting arrest by pulling back his left arm. At this time, DCWY was yelling at JL to exit the Suzuki.

[18] DCW did not recall Detective Constable Hankin (DCH) placing JL into a headlock. DCW admitted that JL would not have been able to let himself out of the vehicle using his right arm.

[19] DC Hankin read JL his rights to counsel and a caution.

[20] DCW’s search of JL’s underwear was brief. He stretched the band perhaps two inches off of the small of the back. It was neither a rectum search nor a strip search. DCW could not say whether there was any oncoming traffic that might have observed any portion of the search.

[21] DCW did not recall any other officer striking JL. He denied that there were multiple strikes. JL’s resistance continued once outside the vehicle. This required DCW to deliver another blow as a distraction technique. JL was lying flat on the roadway while being subdued. DCW did not prepare a use of force report because no injuries were reported and there was no requirement for hospitalization.

[22] DCW described the blow to JL’s head as a “rabbit punch”, designed as a distraction technique. No other officer was grabbing on to JL’s arm at the time. The punch was not excessive. Headlocks and knee strikes are not excessive or unnecessary if warranted by resistance to arrest. Once JL was contained, no further force was employed. DCH assisted with placing JL in handcuffs.

[23] The buy money for the crack cocaine was found in the bedroom safe at Park Lawn.

[24] DCW only had a vague description of BM; he had no dealings with her at the take down. He did recall a female at the take down yelling, “why are you shooting at us?”

Detective Constable Jackson (DCJ)

[25] DCJ received information from a confidential informant (CI) that JL and BM were selling crack cocaine in Barrie. DCJ was part of the police surveillance and take down team. At the box in, DCJ pulled his unmarked vehicle up alongside the Suzuki to prevent it from escaping. DCJ attended at the passenger door of the Suzuki and saw BM in the front passenger seat. DCJ said, “police, you are under arrest, let me see your hands.” DCJ saw BM’s left hand go down into her crotch beneath her bright pink pants. He shouted “remove your hand”, “let me see your hands” and “take your hands out of your pants” but BM did not comply. DCJ removed BM’s hand from her pants and assisted her out of the vehicle. BM threw a cell phone under the Suzuki using her right hand.

[26] BM was advised that she was under arrest. DCJ read her rights to counsel. She replied “yeah” that she understood and then “no” to the name of any specific lawyer. She was then asked about duty counsel and provided with a caution. BM did not respond but nodded affirmatively. BM verbally confirmed her identity and date of birth. DCJ advised Constable Gasmeyer (CG) that he believed that BM had attempted to conceal drugs in her vagina.

[27] Following the strip search at the BPS station, DCJ received a clear plastic bag containing one ounce of crack cocaine from Police Constable Butera.

[28] In cross-examination, DCJ indicated that DCW, Detective Constable Gould (DCG) and DCH were the officers who attended at the driver’s side door. Before entering the Park Lawn apartment, DCJ learned through the building manager that JL had not been there since June.

[29] DCJ recalled that BM was upset when she exited the vehicle, asking: “why are you shooting?”

[30] The basis for BM’s arrest was the following:

• the CI information that JL and BM were actively selling cocaine in Barrie;
• the Mulcaster transaction on October 21, 2012;
• the information about the Suzuki being rented to JL;
• the observations made of the Suzuki making brief stops at various locations in Barrie whereupon individuals entered and exited the vehicle within short intervals or approached the vehicle for brief moments;
• the observations of the Suzuki making two stops in Toronto before returning to Barrie.

[31] According to DCJ, the totality of these circumstances amounted to reasonable and probable grounds for arrest.

[32] DCJ observed no exchange of drugs or money. He overheard no conversations.

Police Constable Rogers (PCR)

[33] PCR was requested by Staff Sergeant Henderson (SSH) of the BPS to carry out a complete search of BM at the BPS station late on the evening of October 23, 2012.

[34] The search was conducted in a room down the corridor from the booking hall generally reserved for taking breath samples. The area is not open to the public. No recording of the proceeding was made. One article of clothing was removed at a time. BM was asked to squat and bend to allow for a check of all cavities. A small bag that fell out of BM’s vagina was handed over to PCB. BM was completely naked for less than five minutes.

[35] There was a small window on the upper part of the steel entrance door to the room. PCR recalled that a paper was covering the small window. During the search, as a measure of safety, SSH and PCB waited outside the door.

[36] In cross-examination, PCR was reminded of her evidence at the preliminary inquiry at which time she testified that there had never been a covering over the window. She agreed that the window was in fact uncovered during the complete search. PCR was shown the booking hall video and agreed that BM appeared to be in emotional distress. As well, BM removed her exterior clothing down to the base layer in the presence of three male officers. Upon her return from the complete search, BM sported a tank top but no brassiere while in the presence of four officers. PCR agreed that BM’s pants appeared to be loose and that her belly and back were partially exposed in the presence of the male officers.

Detective Constable Hankin (DCH)

[37] DCH was part of the surveillance and take down team on October 23, 2012. His observations that day included:

• the Suzuki at the Barrie address of 37 Templeton Drive (Templeton), the residence of a known drug user;
• an unknown male seen exiting the Suzuki and walking away on foot at the plaza located at Hart Drive and Dunlop Street;
• an unknown female exiting the Suzuki and placing a small bag into her purse;
• the Suzuki proceeding down Highway 400 to Park Lawn.

[38] At the take down, DCH’s vehicle formed part of the box in. He pulled up alongside the driver’s door and contacted the Suzuki at a slight angle. DCH came up the side of the vehicle yelling “police”. By the time he arrived, the back driver’s side door was open and he could see DCWY in the back seat holding JL’s hands from behind.

[39] DCH started pulling JL by the left arm. He placed JL into a headlock. DCW came and helped DCH pull JL out of the vehicle. DCH lost his grip on JL’s left hand when JL began moving his hands towards his body. A demand of “show us your hands” was refused causing DCH to deliver two knee strikes to JL’s body. DCW delivered a closed fist punch to JL’s head. DCH could smell marijuana coming off of JL.

[40] DCH advised JL about his right to counsel. JL replied “yes” and indicated a desire to speak with a Jennifer Penman.

[41] DCH performed a pat down search which revealed a wallet, cash and a set of keys. He also searched JL’s underwear and buttocks area for weapons or drugs by pulling his pants out briefly and using a flashlight. DCH did not pull the pants down or put his hands down JL’s pants. This brief search was performed in a protected area.

[42] DCH turned JL over to Detective Constable Traves (DCT) and had no further interaction with JL. DCH attempted to contact counsel Penman at 1:20am but was obliged to leave a message. DCH interviewed BM at 12:47am on October 24, 2012. BM spoke with duty counsel at that time.

[43] In cross-examination, DCH stated that the totality of the activities he observed on October 23, 2012, were consistent with drug dealing activities. DCH agreed that, at the take down, both the position and the angle at which he placed his police cruiser would have prevented the driver’s front door from being opened. Detective Constable Gould (DCG) then moved the vehicle back. The driver’s side doors were smashed after the police challenge and after the cruiser had been moved. DCW assisted DCH in removing JL from the vehicle. The police challenges included words to the effect of “police, don’t move”, “show me your hands” and “roll down the window”. JL never rolled down the window.

[44] DCH recalled that another officer was in the back of the Suzuki with a hold of JL’s hands. That other officer let go when DCH grabbed JL’s left arm. DCW never grabbed JL’s arm. DCH was the only one who grabbed JL’s left arm. There may have been a short second when DCWY had the arm. DCH grabbed JL’s left arm around the wrist and JL grabbed onto DCH’s wrist resulting in DCH pulling out while JL was pulling in. He does not recall whether DCWY was trying to retain control of JL’s hand by bringing it back into the vehicle. He did not think so because DCWY was right there in front of him. Within a second of grabbing JL’s left arm, DCH was concerned that JL was trying to bring it back in so DCH placed JL in a headlock with his right arm after the door was opened. He is unsure of who actually opened the driver’s door. DCH did not punch JL; DCW only punched JL once he was on the ground.

[45] At the preliminary inquiry, DCH had stated that he grabbed JL’s left arm, JL grabbed DCH’s arm, and DCH attempted to pull JL out of the vehicle. Because of JL’s resistance, DCH placed JL into a headlock. At the preliminary inquiry, DCH had stated that when he approached the vehicle, his intention was to arrest JL.

[46] DCH described how JL moved his hands away from the officers and down to his waist area after he was taken to the ground outside the vehicle. JL was burrowing his hand down underneath his stomach towards his waistline. It was only after the quick rabbit punch delivered by DCW that JL became compliant and placed his hands behind his back. DCH denied that he performed a strip search on JL but admitted that he did not know how a strip search had been defined by the Supreme Court in R. v. Golden, 2001 SCC 8, [2001] S.C.J. No. 81.

[47] The search itself was hidden from any public view by the arrangement of the vehicles. DCH did not feel that he rearranged any of JL’s clothing. He did not pull down the pants. He pulled them open and looked down. The search took place at a busy intersection, not at a major intersection. He did not observe any persons watching the search take place.

[48] DCH stated that very little time elapsed between the police challenges and the smashing of the windows. The knee strikes proved unsuccessful; he cannot say for certain whether he delivered fewer than five or six.

[49] DCH had received the description of BM from Detective Constable Pye (DCP). DCH was uncertain whether BM was in the Suzuki until the vehicle take down. He felt that the description matched the female found in the Suzuki. He remembered hearing a female screaming at the scene.

Detective Constable Wyville (DCWY)

[50] DCWY was the officer in charge of the undercover operation investigating suspected drug trafficking at Mulcaster. He had extensive experience in drug investigations, arrests and surveillance operations.

[51] The events of October 21, 2012 involving the crack cocaine buy from JM and the appearance of the Suzuki at Mulcaster in the midst of that deal, led him to suspect that the operator of that vehicle was involved in drug trafficking.

[52] On October 22, 2012, he discovered that the Suzuki had been rented by JL from Avis Car Rental in Barrie for the period of October 20 to October 27, 2012. JL had been identified as a drug trafficker by a CI in 2012. The CI had provided descriptions of both JL and BM. The pair were said to be boyfriend and girlfriend.

[53] DCWY summarized the surveillance information obtained from officers involved in the investigation. On October 23, 2012, the Suzuki was observed at various locations in Barrie including the residence on Templeton. A female matching the description of BM had been seen entering the Suzuki. A number of individuals were observed entering and exiting the vehicle or approaching the Suzuki in various locations for short periods of time.

[54] Searches conducted on the police database revealed that JL had a criminal record which included a conviction for drug trafficking and robbery. A search of the record of the Ministry of Transportation (MTO) revealed that his driver’s license was suspended. MTO records provided a mailing address of 1611-88 Park Lawn Road, Toronto.

[55] The police data base listed BM as a white female born in 1990, five feet seven inches tall and weighing one-hundred and eighty pounds.

[56] In his view, there were reasonable and probable grounds for the take down because:

• On October 21, 2012, the Suzuki was seen arriving at Mulcaster just moments before JM texted DCW that his drugs were ready;
• The Suzuki was rented out to JL;
• CPIC information showed that JL had a criminal record which included trafficking;
• The information received from the confidential sources;
• DCWY’s own personal knowledge and similar information from other team members;
• The Suzuki’s attendance at Templeton;
• The brief entries and exits made into and out of the Suzuki by the unknown male and unknown female;
• The brief interaction with the unknown female at the Bank of Montreal (BMO) plaza.

[57] During the take down, DCWY approached the Suzuki wearing plain, tactical clothing. He would have yelled “Police, show me your hands up”. When he approached the Suzuki, he saw officers on both sides of the vehicle. DCWY opened the rear passenger door and entered. He took hold of JL’s hands until other officers were able to open the drivers’ doors and take better control of him. DCWY had no further involvement with JL.

[58] In cross-examination, DCWY agreed that JL only became a suspect after the Avis car rental information was obtained. Officers were unable to see anything being exchanged or to hear what was being said inside the Suzuki on October 23, 2012. At the take down, DCWY was uncertain if JL had his arms raised in the hold-up position. The purpose of grabbing JL’s hands was to prevent him from moving them. At some point, another officer gained control of JL’s hands from the driver’s door. He does not believe that JL was being punched at that time, but agrees that he could have been. DCWY’s own control over JL’s hands was brief. He did not recall a struggle between himself and another officer over JL’s hands. He did not recall punches, kicks or headlocks being administered. He was in the vehicle less than a minute. He saw afterwards that JL was taken to the ground and handcuffed. Although he had no dealings with BM, he did hear her yelling and perhaps crying. DCWY agreed that BM was not a party to the car rental contract and had no criminal record on CPIC. The description he received of BM from the CI was “female, white.” The female observed at Templeton by DC Pye was described as “female, blond, white, heavy set”. This was a description that could have applied to any number of females. Police did not detain either the male or the female seen exiting and entering the Suzuki on October 23, 2012 because of timing and manpower constraints as well as the need to protect the covert nature of the operation.

Constable Gastmeir (CG)

[59] CG assisted with the take down on October 23, 2012. She was uniformed. Upon arrival she was asked by DCJ to conduct a search on a female whom DCJ had witnessed putting her hands down her pants.

[60] CG first did a pat-down search on BM outside the vehicle by pulling the waist band on her sweat pants out about two inches and looking down. There was nobody else nearby at the time. The search took between 30 seconds and one minute. BM was compliant.

[61] In cross-examination, CG recalled being told by DCJ that BM was known to hide drugs in her vagina and rectum. BM was wearing track style pants. She observed no underwear. She did not remember BM crying or yelling. She agreed that many of her observations have not been noted. The search was carried out partly for officer safety and partly over concerns about hidden drugs and weapons. The search was as private as it could be under the circumstances.

Police Constable Butera (PCB)

[62] PCB assisted with the take down in a marked cruiser. He attended at the passenger side of the Suzuki and found that DCJ had placed a female under arrest. PCB requested that a female officer perform a pat-down search. PCB advised the female of her right to counsel and gave her a caution at 23h21. PCB did not witness the pat-down search. PCB transported the female to BPS where he arrived at 23h31. PCB remained outside the breath room while BM was strip searched by PCR from 23h33 to 23h44. PCB turned BM back over to DCJ at 23h49.

[63] In cross-examination, PCB stated that he approached the passenger side of the Suzuki yelling, “police, show us your hands” loudly enough to be heard inside of the vehicle. BM was visibly upset and crying. A pat-down search should consist of a quick search on top of clothing. He received training on pat-down searches at Police College. One does not remove clothing for a pat-down search. BM indicated that she understood her rights to counsel. PCR turned over the bag of cocaine found on BM to him at 23h44. PCB does not recall BM’s pants falling down in the booking hall.

PCT Traves (PCT)

[64] PCT assisted with the take down in a marked cruiser and in uniform.

[65] PCT took charge of traffic control. He was 30-40 feet behind the boxed in Suzuki. He observed officers removing parties from the target vehicle and heard the sound of breaking glass. A male had been removed from the driver’s side and was being secured and cuffed. DCH brought the male over and read him his rights and a caution before turning him over to PCT. DCH performed a pat down search of the collar, chest, under the waist band, the groin area and pant cuffs. There were no items of clothing removed. PCT repeated to JL the nature of the charges, re-read rights to counsel and caution. JL wanted to speak to a lawyer at the police station.

[66] PCT escorted JL to the BPS station. Staff Sergeant Henderson (SSH) provided authorization for a strip search. This took place in the breath room in the company of Special Constable Boucher (SCB).

[67] Prior to commencing the strip search, PCT informed JL about the process, closed the box of the video camera so that the procedure would not be taped and shut the door to the breath room. SCB stood with his back to the door. The search began with JL’s back to the wall. His shirt was turned inside out, shaken and then inspected. The same procedure was repeated for his pants. The pockets and seams of the articles of clothing were checked and the articles placed on the bench. His socks were checked. JL’s underwear was turned inside out, shaken and inspected. While JL was removing his shoes, a small green leafy ball fell from him. It was consistent with cannabis. JL’s ears, mouth, underarms and feet were checked. JL then bent over to have his buttocks spread and an inspection was made of his anus, penis and scrotum. JL was then given his clothing back to re-dress. During the process, nobody else saw the accused. PCT was satisfied that there had been no privacy issues as SCB had remained on guard with his back to the door throughout the search.

[68] In cross-examination, PCT said that it was not contrary to BPS policy for an individual to be totally naked during a strip search. PCT stated that a number of civilians were around watching the take down, perhaps 10 to 25 and as many as 30 people. He could not say whether any vehicles travelling westbound along Dunlop Street or north or southbound on Hart Drive would have witnessed the take down.

[69] PCT agreed that an individual does not have to be completely naked for a search to be conducted of his armpits, tongue or feet. There were no detailed notes made of the strip search. PCT was concerned with the efficiency of the search and with completing the process as soon as possible. PCT remained concerned preserving JL’s dignity. The booking video records JL complaining about being hit in the face twenty or more times by ten different officers. PCT recalled JL complaining about that in the booking hall but not at any other time.

Detective Constable Gould (DCG)

[70] DCG’s observations on October 23, 2012 were recorded by the central note takers. He did not sign the central notes until January 17, 2013. He believed that the notes were an accurate recording of what he observed. DCG was involved in the surveillance, the execution of the search warrant at Park Lawn, and the take down on October 23, 2012.

[71] On that date, the Suzuki was followed to Templeton. It was then observed at a Mac’s Convenience Store parking lot at Dunlop and Anne Street. On Victoria Street, a female was seen exiting the Suzuki and walking away on foot. Just before 6pm, the Suzuki was observed at the BMO plaza off of Mapleview Drive at which time a female stood by the passenger side of the vehicle for ten seconds before walking away. DCG then observed the two targets of surveillance enter the Cash Money store. After this, the Suzuki made a return trip to Templeton before carrying on to Toronto.

[72] DCG was instructed by Sergeant Brouillard (SB) to take down the Suzuki at a safe location. The box formation was called for at Dunlop Street and Hart Drive. DCG was operating the vehicle ahead of the Suzuki. Once at the intersection, he stopped and then reversed his vehicle causing it to come into contact with the Suzuki. Four to five officers extracted JL from the Suzuki. DCG had no physical involvement with JL; he did observe JL’s right arm clench up to his body and him being taken to the ground. He heard officers saying “get on the ground.”

[73] In cross-examination, DCG stated that four to five officers were at the driver’s door before the minivan was backed up the distance required for the driver’s side door to be opened.

[74] DCG did not witness any punches, knee strikes or headlocks applied to JL even though he remained focused on the arrest and in close proximity to it.

[75] DCG stated that one or two civilians may have witnessed the take down. The area was safe and appropriate for the take down. It would surprise him if between 10 and 30 people had in fact witnessed the events. There were no roadblocks, no stoppage or diversion of traffic by police.

[76] DCG saw nothing go on inside the Suzuki but he did hear a female screaming, “Why are you shooting at us…why are you doing this?”

Sergeant Brouillard (SB)

[77] SB received information about potential drug trafficking at Mulcaster on October 21, 2012.

[78] An undercover purchase was made from JM, a resident at Mulcaster.

[79] JM was observed entering into and coming out of Mulcaster and interacting with the undercover officer.

[80] On October 21, 2012 at 3:28pm, the Suzuki was observed at Mulcaster for 3-4 minutes. JM entered and exited the vehicle. The Suzuki then departed down Codrington Avenue. Neither the vehicle’s operator nor its’ passenger were observed.

[81] Further investigation revealed that JL had rented the Suzuki from Avis in Barrie. Confidential informant information was received about an individual with the street name of “Duke” and BM. Police would later learn that “Duke” was JL’s street name.

[82] On October 23, 2012, the Suzuki attended at Templeton. That address was known to be the residence of Larry Ayers, a known drug user.

[83] SB made personal observations of an unknown male entering the rear of the Suzuki at the Mac’s plaza at Anne and Dunlop Street at 5:38pm and of an unknown female entering the Suzuki on John Street at 5:42pm. SB noticed that the Suzuki was being driven erratically. At the Cash Money Store off of Mapleview Drive, SB observed two occupants of the Suzuki exit the vehicle: JL from the driver’s side and a female in a pink jogging outfit from the passenger side. SB was familiar with JL from a photograph. DCWY identified the female as BM. The Suzuki was then followed to Toronto. SB was able to identify both persons in court.

[84] SB believed that he had reasonable and probable grounds to arrest both JL and BM based upon:

• The attendance of the Suzuki during the undercover buy at Mulcaster on October 21, 2012. SB formed the opinion that the occupants of the Suzuki could have been JM’s supplier;
• The attendances of the Suzuki at Templeton on October 23, 2012;
• The general knowledge and information police had about JL;
• Information from the confidential informants about Duke and BM;
• The number of short interactions between various people and the Suzuki on October 23, 2012;
• The manner in which the Suzuki was being operated.

[85] As of October 2012, SB had been a police officer for sixteen years. On at least thirty separate occasions, he had made the determination that there were reasonable and probable grounds to carry out an arrest.

[86] SB called for the take down at 23h15. He was not part of the actual box in but he was able to observe the Suzuki move forward and strike DCG’s lead vehicle in front of it. Other officers then tightened up the box, preventing the Suzuki from moving any further.

[87] SB observed JL being removed from the Suzuki. JL was not cooperating with officers. JL had his hands underneath his body and was not allowing officers to handcuff him.

[88] In cross-examination, SB stated that he heard JL’s name in the office associated with criminal activity.

[89] At the take down scene, there were 3-4 persons off to the side of the street.

[90] SB made only partial observations of JL being removed from the vehicle. He witnessed no punches, strikes or headlocks. He did not hear the rights to counsel being read. The officers arresting JL were not uniformed.

[91] Two officers performing separate underwear searches might have been a mistake. During strip searches, a detainee is not supposed to be completely naked. The booking officer is responsible for authorizing strip searches.

[92] SB did not see the occupants of the Suzuki on October 21, 2012. Police had no photograph of BM. SB did not observe BM in any hand to hand transaction and did not overhear any conversation about drugs. SB made only one observation of BM prior to the take down, that being of a white female in pink jogging pants at the Cash Money store. At the time, SB did not note any height or weight observations.

[93] A take down was preferable to attending at a residence because of officer safety. At the take down, SB could hear BM crying loudly and asking, “Why are you shooting at us?” SB says he would have declined to grant permission for the conduct of a strip search in public had he been asked. SB agreed that a person should never be left fully naked during a strip search. This would not be in compliance with the law. The exposure of private parts on the street is improper.

[94] SB would have had no concern about the removal of the drawstring on jogging pants as long as it did not lead to the exposure of any private parts.

DC Pye (DCP)

[95] On October 21, 2012, DCP observed the Suzuki leaving Mulcaster and proceeding up Codrington Street. He did not see the occupants of the Suzuki. On October 23, 2012, DCP witnessed the following events at Templeton:

• At 4:49 pm an older male exited the residence;
• At 4:56 pm JL exited Templeton and drove away in the Suzuki;
• At 5:02 pm the older male returned operating a mountain bike;
• At 5:09 pm the Suzuki returned to Templeton;
• At 5:35 pm JL and a white, blonde, heavy set female exited Templeton and got into the Suzuki. The female entered the passenger side of the Suzuki.

[96] At 11:28pm that same evening, DCP observed JL in the Suzuki leaving the underground parking garage at Park Lawn in Toronto.

[97] DCP took part in the take down back in Barrie. By the time he arrived at the Suzuki, the driver’s side door was already open. He assisted in taking JL into custody by controlling his feet while JL was on the ground. JL was not complying with demands. Other officers were attempting to secure his hands.

[98] DCP did not observe any strikes or rabbit punches but he did not have the best vantage point to do so. He did not hear any strikes or blows being delivered. There was yelling going on; he was not sure of what was said or who said it.

[99] DCP did not make notes of the take down. The debriefing took place several months after the event; this was common practice and was not a concern for him.

[100] DCP had no dealings with BM at the take down. He could not recall hearing a female screaming or crying. He received proper arrest procedures in basic training. He could not recall any strip search training.

Staff Sergeant Henderson (SSH)

[101] SSH was the acting staff sergeant on October 23, 2012. He was to ensure that any arrest and booking were lawful. He was to address any medical issues. At approximately 11:33pm he learned that JL and BM were under arrest for possession for the purpose of trafficking and that BM was suspected of having put something down her pants during the take down. This raised concerns of destruction of evidence and safety for both the detainee and officers. A complete search was warranted. The search of BM took place in the breath room. The room was equipped with a metal door with a small square meshed window covered by a light brown piece of paper.

[102] JL claimed he had been struck by officers. There were no visible signs of injury. SSH’s experience was that drug dealers often stash drugs inside their clothing or within their anus or vagina.

[103] In cross-examination SSH testified that he likely authorized the full and complete searches of JL and BM. Although not all persons charged with the possession for the purpose offences are strip searched, he would have ordered it anyway because JL was a known dealer. Typically, such searches involved the removal of one piece of clothing at a time with each piece of clothing put back on as the search proceeds. The person conducting the search should note how it unfolds. Searches are not tape recorded in order to protect a person’s privacy. SSH was unable to confirm that any covering was over the window of the breath room at the time.

[104] Usually two officers are present for strip searches when possible. SSH held no concerns that BM was injured or with the four male officers being around BM when her drawstring was removed. He was not concerned that these officers remained in the area when BM was left holding up her pants or when she was left wearing the sleeveless T-shirt. He felt that BM was adequately covered up.

Special Constable Boucher (SCB)

[105] SCB was outside the “wash court” room when PC Rogers conducted the strip search on BM. He did not observe the search. Any window on the steel door to the room would have been screened. One could not see inside the wash court room from outside in the hallway. During BM’s strip search, SCB remained outside the door for both security and potential emergency reasons.

[106] SCB performed a pat-down search of JL in the booking area. PCT conducted the strip search of JL. SCB was stationed inside the room to both observe the search and to provide security. PCT asked JL to remove one piece of clothing at a time. Once naked, JL was asked to lift his scrotum and to then turn around and touch his toes. JL was completely naked for 20 to 30 seconds.

[107] In cross-examination, SCB could recall no injuries to JL. He conceded that the search could have taken up to nine and a half minutes. JL was required to spread the cheeks of his buttocks. He would be surprised if JL was naked for more than a minute.

[108] BM stated that “I think it hurts but I will be okay.” SCB did not consider that to be an injury complaint. BM did not require any medical attention. During the search of BM, SCB did not recall any other officers being about; there may have been one or two down the hallway.

[109] I found the evidence of all of the officers of BPS to be compelling and reliable. I found the officers themselves to be credible witnesses. I was impressed with the detail they were able to provide to the court. I find that there was no attempt to exaggerate the quality of the investigation; nor was there any effort to minimize any of its shortcomings. I found that most of the officers retained an excellent recollection of the events in question. When they were unable to remember events with certainty, they conceded as much. The officers were vigorously tested by counsel for the Applicants; however, I find that nothing from the cross-examination served to discredit the officers or undermine the reliability of their evidence. Any inconsistencies in their respective evidence were minor, irrlevant or understandable in light of the dynamic nature of the take down. I find that none of the inconsistencies served to taint the evidence or to detract from the overall reliability of the picture painted by the evidence as a whole.

The Basis for the Take Down

[110] I find that the facts established the following background against which the police take down of October 23, 2012 was ordered.

[111] The police operation and investigation into drug trafficking commencing on October 21, 2012 was premised on the belief that JM was trafficking drugs out of Mulcaster. The owner and operator of the Suzuki became a person of suspicion when that vehicle was observed attending at Mulcaster in the moments before the undercover officer was provided with his purchase. Further investigation revealed that the Suzuki had been rented to JL on October 20, 2012 and was due to be returned on October 27, 2012. An MTO database search revealed two addresses for JL, including one at Park Lawn.

[112] Throughout October 23, 2012, the Suzuki was observed attending at Templeton and at other locations in Barrie. Unknown individuals were involved in brief interactions with the occupants of the Suzuki. JL and BM were identified as the operator and passenger of the Suzuki respectively. That same evening, the Suzuki returned to Toronto and was observed leaving Park Lawn before returning north to Barrie.

[113] At the time, police were in receipt of confidential source information. The first source provided the following information:

• “Duke” and “Bailey” were trafficking cocaine throughout the City of Barrie by way of drops at pre-determined location;
• Duke and Bailey shared a phone with the number 705-279-8105;
• Duke was male, black, early to mid 20’s;
• Bailey was a female, white, 5’6”, 180 lbs, 27 years old with long blonde hair;
• Duke and Bailey dealt most every day to Barrie and would likely sell to anyone;
• The source had purchased crack cocaine from Duke in that past week.

[114] The second confidential source provided the following information to police:

• Duke and Bailey trafficked crack cocaine from vehicles at various locations in Barrie;
• Duke was a male, black, 20’s, tall, thin with corn rows;
• Bailey was female, white, 20’s, fat with blonde hair;
• They drove a black Jeep Cherokee or rental vehicle;
• They delivered crack cocaine in vehicles and had buyers enter the vehicle to complete deals;
• Both Duke and Bailey conducted the crack cocaine deals;
• The source had seen Duke and Bailey in possession of an ounce of crack cocaine within the last [redacted] hours;
• The source had bought crack cocaine from Duke and Bailey several times that week including within the last [redacted] hours;
• Duke’s phone number was 705-279-8105.

[115] Police had learned that “Duke” was JL’s street name. JL was suspected by police of trafficking drugs and being affiliated with gangs.

Analysis

A) Sections 8 and 9 of the Charter – the Right to be Secure Against Unreasonable Search and Seizure and the Right not to be Arbitrarily Detained or Imprisoned.

[116] The Supreme Court of Canada’s decision in R. v. Golden, is the starting point for any analysis of what constitutes unreasonable strip searches under section 8 of the Charter. At para. 101 of that decision, the court set out guidelines which were said to “provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter”. Of particular note for the purposes of this application is guideline number 8, which, like the other guidelines, is framed as a question:

8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

[117] I was referred to no binding authority which stands for the proposition that a failure to comply with one of these guidelines will, in and of itself, render the strip search illegal for the purposes of section 8. Indeed, the court in Golden states that the onus rests upon the Crown to prove that a strip search, which is without question intrusive and presumptively unreasonable, was reasonable and to explain why it was conducted in the manner and circumstances it was (para. 106). The more intrusive the search, the greater will be the degree of justification required and the greater the constraints as to the way it may be concluded (para. 106).

[118] In R. v. Muller, 2014 ONCA 780, [2014] O.J. No. 5327, the Court of Appeal found that a strip search in which the appellant was required to stand naked, was in violation of section 8 of the Charter. However, the court in that case also took into account other factors in reaching that conclusion: no supervisory authorization was sought or obtained; the officers had left the door to the search room open; the appellant was left naked facing a hallway accessible by other persons of either gender; the search was videotaped and available for viewing by others at various places in the station; and the appellant was given no choice about removing a plastic bag from between his buttocks. I find that Muller does not stand for the proposition that the mere fact a person was obliged to remain undressed for a period of time constitutes, on its own, an infringement of section 8 of the Charter.

[119] In R. v. Holness, [2004] O.J. No. 765, Chapnik J of this court, having reviewed the entire facts of the impugned strip search in that case, concluded that a strip search at the police station, having been conducted in a secure room, in a non-intrusive and professional manner and within a time period of four minutes was reasonable; this despite the fact that the detainee had been naked for an unspecified period of time.

[120] I was referred to a number of provincial court decisions that have grappled with the issue. In R. v. Bloomfield, 2011 BCPC 56, [2011] B.C.J. No. 384, a decision of the British Columbia Provincial Court, the presiding justice found the strip search lawful despite the fact that the accused had been left with all of his clothes removed for a period of time.

[121] Justice Katarynych of the Ontario Court of Justice found that a failure to heed one of a number of guidelines provided by Golden to assist police, did not translate into a Charter breach: R. v. V.K., 2011 ONCJ 573, [2011] O.J. No. 5128 at para. 110.

[122] A more recent decision of Justice D.P. Cole of the Ontario Court of Justice determined that, absent exigent circumstances, a detainee subjected to a strip search which left him fully naked by the end of the search had suffered an infringement of his section 8 rights: see R. v. S.M., 2013 ONCJ 219.

[123] I conclude from a review of the case law the following:

• R. v. Golden provides the framework for assessing the reasonableness of an impugned strip search;
• the Crown carries the onus of demonstrating that the strip search was reasonable;
• the fact that a person was left naked for a period of time during a strip search is one of the primary factors for the court to consider when determining whether the search was reasonable;
• any consideration of that primary factor must involve a look at any exigent circumstances in existence at the time the search was conducted.

(i) The Strip Searches of JL

[124] I am satisfied that the roadside search of JL was reasonable and did not infringe upon his s. 8 rights for the following reasons:

(1) The search involved the briefest of checks into JL’s underwear. There was no removal of clothing. The waist band of the pants and underwear were pulled out minimally and briefly.

(2) The search was minimally intrusive and was entirely justified by the suspicion that JL was dealing in drugs and that he was a gang member. Both officer safety and a concern for the preservation of evidence justified this brief search.

(3) In the circumstances, authorization from an officer in an advisory capacity was not necessary.

(4) There is no evidence that any member of the public actually witnessed any detail of the search.

[125] Given the time of night, the location of the police vehicles and the cursory nature of the search, I am unable to find that JL’s privacy was invaded. There is no evidence to suggest that the search was aggressive, intrusive, or humiliating.

[126] The search of JL at the BPS was necessarily more involved. I find that the police had reasonable grounds to conduct the strip search and that the search itself was reasonable and did not infringe upon JL’s rights under section of the Charter. I do so for the following reasons:

(1) JL was under arrest for drug trafficking. He had been non-compliant at the time of his arrest. The road side search had been only cursory.

(2) It is commonplace for drug traffickers to conceal drugs within body parts or orifices. JL’s suspected accomplice BM had been seen shoving a hand down her pants in the seconds following the take down.

(3) I accept that the appropriate authorization to conduct the more intrusive search was sought and obtained and that the police officers ensured that the search was conducted in the least intrusive manner possible. I also accept that JL’s privacy and dignity were both protected during the search.

(4) I am not persuaded that the very brief period of time that JL was naked was unreasonable in the circumstances. Police were entitled and obliged to thoroughly search his armpits, buttocks, anal cavity, feet and scrotum. There is no evidence that JL was left completely naked for more than a minute.

(5) I find that the breath room was a secure, private area. Officer Boucher was posted by the closed door. I find that the window on that door was either screened, or afforded no view into the room for passers-by. I am satisfied that the video camera box was closed to ensure the privacy of the detainee.

[127] The Crown has therefore satisfied me that the strip searches of JL were both justified and carried out in a dignified and reasonable manner. I am satisfied that the searches of JL did infringe upon any Charter protected right.

(ii) The Strip Searches of BM

[128] I am satisfied that the roadside search of BM was reasonable and proportional to the circumstances for the following reasons:

(1) DCJ called in a female officer to conduct the search.

(2) The search was incident to arrest on the charge of drug trafficking.

(3) DCJ had observed BM shoving her hand down her pants in the seconds following the box in. In addition, BM was observed tossing her cell phone underneath one of the parked vehicles.

(4) The search did not involve the removal of clothing; at the very most, it involved a limited pulling out of the waist of the pants to allow a brief search into the buttocks and vaginal area without any kind of burrowing or entry. Police could not have known that BM was not wearing underwear. I am not persuaded that any male officer or any member of the public could have had a glimpse of BM’s private parts.

(5) Authorization by an officer in a supervisory capacity was not, in the circumstances, necessary.

(6) There was no evidence of ill treatment or abuse.

[129] The fact that BM was upset and screaming is understandable; it did not render the search unnecessary or unreasonable. On the whole, I am satisfied that the roadside search of BM was reasonable and did not infringe BM’s Charter protected rights.

[130] The strip search carried out on BM by PC Rogers at the BPS is more problematic for police and the Crown. I find that most aspects of the search were reasonable for the following reasons:

(1) The limited and non-intrusive nature of the road side search would not have allowed for the discovery of any illegal substances concealed in BM’s private parts. A full search was necessary, principally because BM had been seen with her hands down her pants at the take down.

(2) Police rightly held a real and genuine belief that she was attempting to hide drugs; indeed, this reasonable suspicion applies to many drug traffickers.

(3) BM’s actions in attempting to discard the cell phone at the take down could only serve to reinforce this justly held suspicion.

(4) I find that proper authorization was obtained from Sergeant Henderson.

(5) I find that the setting in which the search took place was entirely appropriate: a lone female officer conducted the search behind closed doors with an officer standing guard outside. I am unable to find on the evidence that any male officer caught a glimpse of the search.

(6) The window on the breath room door was small and was either screened or impractical for affording a view to the proceedings going on inside.

(7) The search was neither aggressive nor unduly intimidating.

(8) The search was not tape recorded.

[131] I found PC Rogers to be an entirely credible and reliable witness and I accept her evidence wholeheartedly on how the search unfolded.

[132] I am unable to find that BM was either naked or unreasonably exposed while in the booking hall. The garment underneath her jogging suit top did not leave any portion of her breasts exposed. Although she was obliged to remove the drawstring on her track pants and hold them up, this was a reasonable request in light of prisoner security and safety. There is simply no evidence that this led to any exposure of any part of her body below the waist while she was in the booking hall. There is no evidence that she was the subject of any inappropriate attention or remarks from anybody in the booking hall. In my view, the officers acquitted themselves responsibly and professionally.

[133] I accept the evidence offered by all officers having to do with the search or the dealings in the booking hall.

[134] This leaves the problem of BM being completely naked for as much as five minutes or more while in the breath room. A certain amount of time had to be allotted to the complete search because of the discomfort BM reported herself to be in; her emotional state; the requirement for thoroughness; and the difficulty that she had in getting down into a squat to allow for the complete search. I am not disturbed by the length of the search itself.

[135] I find, however, that there was no need for her to remain completely naked for a period of five minutes. BM should have been directed to replace items of clothing once the applicable areas of the body had been searched. This would have permitted the search to continue in a reasonably ordered and thorough fashion without the detainee having to be left naked for such a lengthy span of time. I am unable to find any exigent circumstances that would justify that level of intrusion. In my view, it matters little that the officer conducting the search was a fellow female. It is presumptively embarrassing and humiliating for a detainee to be left naked in front of a person in a position of authority while in an unfamiliar environment for such a lengthy period of time. It was also unnecessary in these circumstances. There is no reason why the search could not have been conducted in a manner which ensured that BM would not be left completely naked or would only be left so for the shortest possible interval.

[136] I find that the strip search conducted on BM at the BPS constituted an unreasonable search which amounted to an infringement of her s. 8 Charter right to be secure from unreasonable search.

(ii) Reasonable and Probable Grounds for Arrest

[137] Section 495 of the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 20.

[138] I find that the police had reasonable and probable ground to arrest the Applicants for possession of cocaine for the purpose of trafficking. I find that the investigation preceding the take down was thorough, focused and fruitful. The Street Crime Drug Unit (SCDU) of the BPS was conducting an investigation into suspected drug dealing activities taking place out of Mulcaster. A covert purchase of crack cocaine was made from JM at Mulcaster moments after JM was seen exiting from the Suzuki which had made the briefest of stops in the driveway of the premises. A plate search revealed that the Suzuki was rented out to JL at the time and for a short period. JL was already a person suspected of drug trafficking by Barrie police. Confidential informants provided police with a description of Duke and Bailey, their relationship to each other, as well as details of their habits and tendencies. Observations made of the Suzuki on October 23, 2012, recorded the vehicle attending at the residence of Larry Ayers (Templeton), a known drug user and, on several occasions that day, engaged in the pattern of activity described by the informants. Such activity was consistent, in police experience, with drug trafficking. A female matching the CI description of Bailey was observed outside the Suzuki at Templeton. A female matching the CI description of Bailey and a male matching the CI description of JL were both observed exiting and re-entering the Suzuki at the BMO plaza. The Suzuki was observed departing from the parking garage of the Park Lawn apartment building linked to JL. The Suzuki was then followed as it made its way back into the City of Barrie. A female matching the description of BM was observed in the seconds following the take down in the front passenger seat of the Suzuki attempting to shove something down into her private parts.

[139] The information from the confidential source was but one of the pieces relied upon by police. It was nevertheless of sufficient detail to be compelling and credible. Moreover, it was corroborated by what police witnessed on October 21 and again on October 23, 2012. The pattern of activity observed by police on October 21 and 23, 2012, including the use of a rental car and the appearance of the two individuals sighted on the second of those days, tended to corroborate the substance of what had been disclosed by the confidential informant. In my view, the confidential informant information, viewed in the totality of the circumstances, was compelling, credible and corroborated for the purposes of the test laid down in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 53.

[140] One is hard pressed to imagine a legitimate activity that either the driver or the passenger could have been engaged in on October 23, 2012. All of the objective signs pointed towards drug trafficking. I find that a reasonable person would have been drawn to that conclusion. Seen through the eyes of experienced drug enforcement officers, that conclusion would be inescapable. The totality of the investigation was more than sufficient to establish reasonable and probable grounds for the arrest on charges of drug trafficking.

(iii) Reasonable and Probable Grounds for the Search of Park Lawn

[141] I find as well that there was sufficient reliable evidence upon which the issuing justice could have granted the warrant for the search of Park Lawn under section 11 of the CDSA.

[142] There is nothing in the Information to obtain dated October 24, 2012 that is materially misleading. Specifically, I am not persuaded that the statements at subparagraphs 40(xi) and 40(xii) were materially misleading. Given the totality of the activity engaged in by the two Applicants that afternoon and evening, the fact that the unknown female may not have actually entered into the Suzuki or the Cash Money location with BM would not, I find, have weighed heavily on the mind of an issuing justice. I am also not persuaded that the failure of the police to witness JL enter into the actual unit at Park Lawn or their failure to obtain a copy of any rental agreement from the building supervisor can in any way detract from the reasonable and probable grounds established by the totality of the evidence.

[143] The police carried out a covert drug purchase from JM at Mulcaster on October 21, 2012. The Suzuki was seen attending at Mulcaster in and around the time of the purchase. Its arrival at Mulcaster and JM’s brief interaction with the occupants of the Suzuki coincided perfectly with the drugs being ready for pick up. The Suzuki was traced to JL. Park Lawn was listed as JL’s mailing address. JL was known to police as a possible drug dealer. JL was found to have a criminal record. CI sources provided information about JL (aka Duke) and his female companion dealing drugs in Barrie. That information included methods, patterns and descriptions. The observations made during surveillance on October 23, 2012 revealed a series of activities entirely consistent with both drug trafficking and with the details provided by the CI sources. Persons matching the description of both JL and BM were observed getting in and out of the Suzuki. The Suzuki was observed travelling to Park Lawn and shortly thereafter, making the return trip to Barrie. The search of BM led to the discovery of a quantity of crack cocaine on her person. The search of JL led to the discovery of a quantity of cannabis marihuana on his person. In my view, the totality of these facts as established by the evidence established reasonable and probable grounds to believe that a search warrant on Park Lawn under section 11 of the CDSA would afford evidence to support the offence listed in the information to obtain.

[144] Viewed as a whole and in the context of this case, I am of the view that there was a sufficient basis on the record before the issuing justice to issue the warrant dated October 24, 2012 for the search of Park Lawn.

B) Section 12 of the Charter – the right not to be subjected to any cruel and unusual treatment or punishment

[145] The evidence clearly establishes that the arrest and take down at Dunlop Street and Hart Drive on October 23, 2012 featured undercover police officers and vehicles, the element of surprise, a degree of shock effect, the use of force, and roadside searches. I have concluded that, in light of all of the circumstances, the take down and arrest of JL did not involve excessive force and did not serve to infringe JL’s right not to be subject to any cruel and unusual treatment or punishment.

[146] I accept that the officers of the BPS were entirely justified in the actions that were taken. JL was suspected of trafficking drugs; he had a prior criminal record; he was thought to be associated with gangs; he was seen to be driving erratically on the date of the take down. I conclude that the police acted reasonably in selecting the Dunlop Street/Hart Drive location for the take down. Officer safety and third party rights of privacy argued against an attempted apprehension at a private residence. The intersection selected was busy but safe. The box in technique was reasonably necessary to prevent the target motorist from attempting to escape. Such an attempt could lead to pursuits and pose a threat to public safety. The box in caused only a minimum amount of contact with the Suzuki. There is no evidence to suggest that either JL or BM suffered injuries in the one or two minor collisions that resulted from vehicle movement. Given the nature of the suspected offence, the observed driving habits of the operator of the Suzuki, the tinted windows on the Suzuki, the known criminal record and suspected affiliation of JL with gang activity and the prevailing concern with the destruction of evidence, possible concealed weapons and officer and public safety, I find that the officers of the BPS were well within their rights to effect the take down in the manner that they did.

[147] I find the testimony offered by the officers participating in the apprehension of JL, notably DCW, DCWY and DCH to be credible and reliable. Although there was some conflicting evidence about the content and timing of the police demands, which officer took hold of JL’s left arm, the number of rabbit punches and body strikes delivered, and the time that those blows were delivered, the evidence persuades me that JL’s actions and movements conveyed an intention to resist arrest and to move his hands towards parts of his body where a weapon could have been concealed or where evidence could have been hidden. This justified a positive police response. I am not persuaded that DCWY had hold of JL’s arms or hands for such a period of time that it prevented JL from complying with the demands of either DCH or DCW who were working the driver’s side of the Suzuki. I find that, given the nature of the take down, which was both fluid and dynamic, and which carried with it genuine concerns about officer security, public safety, the existence of weapons, and the preservation of evidence, the officers of the BPS acted with reasonable and proportionate force to apprehend and subdue JL. I accept DCW’s evidence that the blows he delivered were distraction techniques. There is no evidence to establish that the blows and strikes were excessive, prolonged, disproportionate to the circumstances, designed to mete out punishment or to inflict harm. On the contrary, I find the police action to have been controlled, focused and measured. The use of force was limited to the very short period of time during which the outcome of the police action was uncertain. Once JL was securely in custody, the use of force ceased immediately and completely. There is no evidence to establish that JL was injured in anyway or that he sought or required any medical attention. Finally, there is no evidence to support JL’s assertion in the BPS booking hall that he had been the recipient of twenty blows by ten officers.

[148] I conclude that there was no infringement of JL’s s. 12 Charter rights on October 23, 2012.

C) Section 10 (a) – The Right to be Informed Promptly of the Reason for Arrest or Detention

[149] JL contends that his rights under section 10(a) of the Charter were infringed on October 23, 2012. I am not persuaded that JL suffered an infringement of his rights under this section. Simply put, I accept the evidence of PCT that both JL’s rights and the appropriate caution were read to him by DCH shortly after being handcuffed. I also accept that PCT re-read JL his rights, explained the nature of the charges and provided a caution shortly after JL was turned over to him and prior to PCT escorting JL back to BPS.

[150] I conclude that there was no infringement of JL’s rights under s. 10(a).

D) Section 7 – Life, Liberty and Security of the Person

[151] I am unable to find that either of the Applicants experienced a deprivation of these Charter protected rights. I have found the take down and detentions that took place on October 23, 2102, to have been entirely reasonable and based upon valid grounds. I have found that there were reasonable grounds upon which the issuing justice could have granted the search warrant for Park Lawn. Both the subduing of JL at the take down and the searches conducted on him incident to arrest were justified and reasonable. Nor do I find that any conduct by BPS wrongfully deprived BM of her section 7 rights. Police had reasonable and probable grounds to detain and search her. She was not held for any unreasonable period of time. I find that she understood the nature of the charges against her and was provided with her rights to counsel and the appropriate caution at the scene of the take down. I have found that the road side strip search was warranted and reasonable. I am unable to find that the single infringement of her right to security against unreasonable search during the BPS strip search amounted to any deprivation of the security of her person for the purposes of s. 7 of the Charter.

Section 24(1)

[152] I have found that BM suffered an infringement of her Charter protected rights under section 8 having been subjected to a strip search at BPS which left her completely naked for approximately five minutes. As a remedy, BM seeks a stay of execution of the charges against her.

[153] The remedy of a stay of execution is only available in the clearest of cases. BM must demonstrate that the police conduct would shock the conscience of the community and be so detrimental to the proper administration of justice that it qualifies as one of the extremely rare cases requiring judicial intervention: see R. v. Power (1994), 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1 (SCC), at para. 11.

[154] I am unable to find that the police conduct in respect of the strip search of BM rose to the level of shocking. I accept that PCR was professional, diligent and respectful of BM. There was no evidence of any abuse, intimidation, objectification or intentional infliction of humiliation. There is no evidence of bad faith on the part of the police. The search itself was not excessive or unwarranted. PCR should simply have taken steps to ensure that BM was not completely naked for such a long period of time. In my view, the facts as I have found them would not serve to shock the conscience of the community.

[155] I conclude that a stay of execution of the charges against BM is not warranted.

Section 24 (2)

[156] In the alternative, BM seeks an exclusion of the evidence obtained as a result of the search.

[157] It is clear that the impugned evidence was obtained in the course of the Charter infringing search; however, I am not persuaded that an exclusion of evidence remedy is warranted in this case. I have found that the strip search was improper for the simple reason that BM was naked for an excessive period of time without any exigent circumstances. Nevertheless, the police conduct was not carried out in bad faith. There was adherence to nearly all of the requirements for proper strip searches: the search was conducted by a female officer; the search was conducted in a closed room; there was no evidence of force or intimidation; the procedure was not recorded for viewing by others; no male officers observed the search; the search did not inflict pain on the subject; there is no indication that PCR was rude, insulting or demeaning.

[158] A strip search is presumptively embarrassing and constitutes an invasion of privacy. The strip search here necessarily involved a complete body search including the most private of areas. At some point, BM was going to have to be naked from the waist down so that her vagina and anus could be searched. The search was never going to be pleasant or fleeting if it was ever going to be complete and thorough; and thorough and complete it had to be in light of the strong suspicion that BM had attempted to conceal something in her private parts at the scene. The court’s only criticism of PCR is that leaving the detainee completely naked for a period of five minutes was unnecessary.

[159] Having regard to the criteria for any s. 24(2) analysis as laid down by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1, I conclude that the Charter offending conduct by the BPS in this case was not serious. I have simply found that PCR allowed BM to remain completely naked for an unwarranted length of time during an otherwise legitimate and justified strip search.

[160] In addition, there is insufficient evidence to establish that the infringement had any profound impact on BM’s Charter protected interests. The strip search was necessary and reasonable. The search would have uncovered the evidence even if BM had not been left completely naked. There is no evidence that the infringement caused her any embarrassment, trauma or discomfort beyond what a perfectly executed search would have wrought upon her.

[161] Finally, I conclude that society has a great interest in the adjudication of this case on its merits: the case against BM is largely based on the evidence of the cocaine found upon her person during the search. To exclude that evidence would completely undermine the Crown’s ability to pursue a conviction.

[162] Having balanced these considerations, I conclude that the administration of justice would not be brought into disrepute if the evidence were to be admitted. In the circumstances of this case, a reasonable member of the public would not be shocked that a thorough and complete strip search of a suspected drug trafficker would involve a period of time during which the detainee was completely naked.

The Residual Analysis under Sections 24(1) and (2)

[163] If am wrong in my determination that, save and except for the infringement of BM’s s. 8 rights as detailed above, there were no further infringements of the Applicants’ protected rights, then I would, in any event deny any remedy to the Applicants under the analysis in R. v. Grant.

[164] I would be unable to find that any infringements of JL’s Charter rights involved serious state misconduct. The search of Park Lawn was done pursuant to a warrant obtained after a three day investigation that featured prolonged surveillance, background checks, confidential information and the evidence procured from the Applicants in justified searches incident to arrest.

[165] Similarly, the take down and arrest of the Applicants was carried out in a thorough, organized and measured way. The box in technique was executed safely and responsibly and was an entirely appropriate method of apprehension in light of public and officer safety, legitimate concerns about evasion and pursuit, the spectre of weapons use and the preservation of evidence. Take downs are inherently fluid and dynamic events. It is difficult to expect officers to adhere to any exacting protocol when every take down situation is unique and demands that officers react to events as they unfold.

[166] I would not find that any use of force against JL constituted serious state misconduct; the force employed was measured, focused and brief. I do not accept that there was any attempt to injure, punish or intimidate JL. I am unable to find that JL sustained any injury. The force was immediately discontinued once JL was in custody. If it was excessive for the circumstances, and I find that it was not, then it was barely so. There was a constellation of factors (including JL’s suspected association with gangs, his criminal record, the tinted windows on the Suzuki, his pattern of erratic driving and excessive speed, his evasive manoeuvre at the box in, his resistance to having his hands secured, and his attempt to move his hands down below his waist area) that justified the police employing the force that they did. Officer and public safety, as well a concern about weaponry and the preservation of evidence entirely justified some use of force. I conclude that any infringement of JL’s section 12 rights did not involve serious police misconduct.

[167] As well, there was no serious infringement of JL’s s. 10(a) rights. I do not accept that he would not have known in the seconds and minutes following take down what it was he was being detained for. The entire nature of the take down and the demand of police to show his hands conveyed a police concern with the presence of banned substances. The roadside search and more particularly, the strip search at BPS would have left him with no doubt what police were looking for and the jeopardy he was facing.

[168] I agree that the impact of any breach of the Applicant’s Charter protected rights in this case would have been serious. I find that any unjustified take down in a public setting, any unreasonable search of a person’s residence, any unwelcomed bout of manhandling or physical force against one’s person and any prolonged period of time in which a detainee is left wondering what the reason for his detention is, would greatly impact Charter protected rights.

[169] In the final analysis, however, even if there were Charter infringements, and these were found to have involved serious state misconduct that resulted in a serious impact on Charter protected rights, I am satisfied that society’s interest in having the matter adjudicated on its merits would heavily outweigh the granting of a stay or an exclusion of the evidence. The impugned evidence of the cocaine found on BM and the cocaine found at Park Lawn are both critical to the Crown’s ability to prosecute the case. I am satisfied that the admission of the evidence would not bring the administration of justice into disrepute if the evidence were not excluded. The contrary, in fact, would be true: in my view, public faith in the efficacy of the justice system would be entirely undermined if the evidence were to be excluded in this case.

Disposition

[170] For the foregoing reasons, the Applications are dismissed. There shall be no stay of execution of any of the charges. The Crown is permitted to introduce into evidence the items found on both JL and BM incident to the strip searches and the evidence found at Park Lawn incident to the execution of the search warrant.

J.R. McCARTHY, J.

Released: April 2, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.