R. v. Johnson, 2016 ONSC 3947

CITATION: R. v. Johnson, 2016 ONSC 3947

COURT FILE NO.: CR-14-3172

DELIVERED ORALLY: June 15, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Benjamin Johnson

Defendant

Scott Kerwin, for the Crown

Patrick J. Ducharme, for the Defendant

HEARD: September 25, 28 and 29, 2015; and May 16, 2016

RULING ON EXCLUSION MOTION

Munroe J.:

[1] Can the police lawfully swab an arrestee’s penis without a warrant? This emerging issue now confronts this court.

[2] The police arrested Benjamin Johnson at his Windsor home for sexual assault. A little more than an hour later the police took a penile swab from Mr. Johnson at the police station. DNA was found on the penile swab. In layman’s terms, the DNA found on the penile swab matched the complainant’s DNA. Mr. Johnson now seeks to exclude the penile swab evidence from his trial.

[3] More particularly, Mr. Johnson asserts that the warrantless police seizure of evidence from a penile swab was contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“the Charter”). Mr. Johnson also asserts he was denied his right to counsel following his arrest as well as prior to the penile swab procedure, contrary to s. 10(b) of the Charter. Mr. Johnson believes that the penile swab and its fruits, most notably its subsequent analysis and comparison, should be excluded as evidence in this trial pursuant to s. 24(2) of the Charter.

[4] Mr. Johnson advances the following issues:

1. The warrantless, non-consensual taking of a penile swab from Mr. Johnson violated s. 8 of the Charter.

2. The police failure to give Mr. Johnson a reasonable opportunity to consult with counsel violated s. 10(b) of the Charter.

3. The police failure to readvise Mr. Johnson of his right to counsel prior to the penile swab procedure violated s. 10(b) of the Charter.

4. The infringement of these Charter rights mandates the exclusion of the penile swab evidence.

[5] The Crown denies any violation of s. 8. The Crown believes the penile swab procedure was a lawful search incident to arrest and thus was not contrary to s. 8. With regard to the alleged s. 10(b) violations, the Crown argues Mr. Johnson did not invoke his right to counsel upon his arrest, thus relieving the police of any implementational obligations. Regarding the defence claim that the police had a duty to readvise Mr. Johnson of his right to counsel when the penile swab decision was made, the Crown believes a penile swab is not the type of procedure mandating a renewal of the right to counsel duties. The Crown alternatively asserts that the police were entitled to suspend Mr. Johnson’s right to counsel pending completion of the penile swab procedure. In any event, the Crown asserts any Charter violation found does not warrant exclusion under s. 24(2).

[6] Each issue will be addressed.

[7] A voir dire was held on the defence motion. Evidence was taken over three days. The court heard from nine current or former Windsor Police officers: Jeffrey Danby, James Lucier, Kevin Lacoursiere, Blake Gazdig, Ann Hall, John Nayduk, Ryan Jones, David Lupton and Sean Bender. The accused, Benjamin Johnson, also gave evidence at the voir dire. Four exhibits were entered: an executed entry consent form, the transcript of the preliminary hearing evidence of the complainant, a page from the jail’s lawyer call log and the Centre of Forensic Sciences report on the penile swab analysis. Extensive written submissions and authorities were received and reviewed. Oral submissions were heard on a fourth day.

[8] First, a detailed review of the evidence is necessary.

FACTS

[9] My review of the facts is limited to those of significance which provide the necessary context or are material to the issues raised. Most are either uncontested or uncontroversial. I will note those facts which are contested and will resolve them.

1. Arrest Decision

[10] At 1:50 a.m. on March 18, 2013, Sgt. Ann Hall was dispatched to Metropolitan Hospital. She arrived at hospital at about 2:00 a.m. and spoke with the complainant, a female. The complainant advised Sgt. Hall that she, her sister, her sister’s friends and members of the Windsor Spitfires hockey team were at a downtown nightclub. She advised that both Benjamin Johnson and her brother were members of the Spitfires. The complainant said she attended the women’s washroom at the nightclub where she was sexually assaulted by Benjamin Johnson. The complainant advised she was a virgin and, apparently, there was a lot of blood. Sgt. Hall observed blood on the white pants worn by the complainant. Sgt. Hall instructed officers to attend the nightclub bathroom. They reported to Sgt. Hall that splatters of blood were found in the bathroom stall.

[11] Believing she had reasonable grounds for the arrest, at about 3:35 a.m. Sgt. Hall informed Sgt. Lucier to arrest Benjamin Johnson for sexual assault and advised him of the grounds to arrest. She directed Sgt. Lucier to the billet address of Mr. Johnson.

2. Arrest

[12] At about 3:55 a.m. on Monday, March 18, 2013, three officers from the Windsor Police Services – Sgt James Lucier, Cst. Jeffrey Danby and Cst. Kevin Lacoursiere – arrived at a home in Windsor, Ontario, for the purpose of arresting Mr. Johnson, the accused, for the crime of sexual assault. Mr. Johnson then was 18 years of age and a member of the Windsor Spitfires hockey team. Mr. Johnson was not from Windsor. He was from the State of Michigan in the United States. In Windsor, Mr. Johnson lived at a billet residence, the home attended by the Windsor Police.

[13] The police knocked on the door and spoke with the home owner who then gave written consent for the police to enter the residence for the purpose of arresting Mr. Johnson. The three officers were directed to the basement bedroom of Mr. Johnson where they attended and knocked on his bedroom door. Mr. Johnson responded to the knock in boxer shorts and was advised by Cst. Danby that he was under arrest for sexual assault. The police permitted Mr. Johnson to get dressed. Mr. Johnson then exited his bedroom into a basement common area where he was handcuffed by Cst. Danby at approximately 3:57 a.m.

[14] The events at the home were unremarkable. The officers were experienced and conducted themselves professionally. The accused was cooperative.

3. Right to Counsel

[15] Once outside his bedroom and handcuffed by Cst. Danby, Mr. Johnson was read his right to counsel and caution by Cst. Danby in the presence of Sgt. Lucier and Cst. Lacoursiere. Mr. Johnson’s response to his rights to counsel is contentious and requires detailed review. There are two separate factual issues. First, did Mr. Johnson say “no” to Cst. Danby’s question, “Do you wish to call a lawyer now?” Second, if not, did Mr. Johnson’s verbal response include a desire to call a lawyer? Although there is some overlap, there is more clarity by dealing separately with each factual issue.

A. Did Mr. Johnson say “no”?

[16] Cst. Danby testified that Mr. Johnson said “no” after the officer read the accused his rights and asked, “Do you wish to call a lawyer now?” According to Cst. Danby, Mr. Johnson never said anything about wishing to speak with a lawyer.

[17] Sgt. Lucier was present when Cst. Danby read Mr. Johnson his rights, including asking Mr. Johnson if he wanted to call a lawyer. Sgt. Lucier is “absolutely certain” Mr. Johnson did not respond with a “no.” Rather, according to Sgt. Lucier, Mr. Johnson asked to call Bob Boughner who Sgt. Lucier understood to be an executive of the Windsor Spitfires and not a lawyer. Because this response was “out of the ordinary”, Sgt. Lucier answered for Cst. Danby advising Mr. Johnson that he could accommodate the telephone request immediately in the home but that he could not provide any privacy to Mr. Johnson. Mr. Johnson responded that he would call at the station.

[18] Cst. Lacoursiere is of little help. He testified he has only a very vague memory of the arrest and has no recollection of Mr. Johnson’s response to the lawyer question because he was not paying attention. Cst. Lacoursiere testified he was focused elsewhere on potential safety issues.

[19] Mr. Johnson testified he never said “no” in response to being asked if he wanted to call a lawyer. Mr. Johnson said that portion of Cst. Danby’s evidence is false. Mr. Johnson said that he asked to call Bob Boughner, his head coach and the owner of the team. Mr. Johnson was promised by a different officer, Lucier, that he would be given a chance to call Bob Boughner at the station. The officer told Mr. Johnson that the officer could not give Mr. Johnson privacy at the billet home.

[20] I accept the evidence of Sgt. Lucier and Mr. Johnson on this issue. I reject the evidence of Cst. Danby on this issue. I find that Mr. Johnson did not say “no” in response to the question whether he wished to call a lawyer at that moment. Instead, I find, that Mr. Johnson’s response was to ask to call Bob Boughner, who Mr. Johnson identified as his head coach and owner of his team. I further find that Sgt. Lucier told Mr. Johnson either directly, or by reasonable implication, that the police would accommodate Mr. Johnson’s request to call Bob Boughner at the station with privacy.

[21] I further decline to accept the Crown’s suggested explanation for this factual discrepancy – that all versions are true because the words between Sgt. Lucier and Mr. Johnson were a side conversation not involving Cst. Danby. First, no one explained the reading of the rights by Cst. Danby as having multiple and discrete conversations. Mr. Johnson did say, “I was sort of having, like, a side conversation with the other officer about talking to my – my head coach Bob Boughner.” But Mr. Johnson did not say this conversation was away from Cst. Danby. Second, according to Cst. Danby, immediately after his reading of the right to counsel he proceeded to read the standard caution. Cst. Danby estimated the total time for the rights and caution to be under three minutes. No one gave contradictory evidence. There was no time and no break in order to have a Sgt. Lucier−Ben Johnson side conversation away from Cst. Danby. And third, Cst. Danby said Mr. Johnson’s response was “no.” This type of unequivocal response itself provides no room for the explanation advanced.

B. Did Mr. Johnson’s response include a desire to speak with a lawyer?

[22] This factual issue is resolved by examining the evidence of Sgt. Lucier and Mr. Johnson. Although present, as noted above, neither Cst. Danby nor Cst. Lacoursiere provide any helpful information on this issue.

[23] Sgt. Lucier said Mr. Johnson did request to make a telephone call to Bob Boughner in response to Cst. Danby’s question whether he wanted to call a lawyer. Sgt. Lucier understood Bob Boughner was an executive of the Windsor Spitfires. Because this request was “out of the ordinary”, Sgt. Lucier responded for Cst. Danby. By “out of the ordinary”, Sgt. Lucier said he meant the request was to call someone other than a lawyer. According to Sgt. Lucier, Mr. Johnson never made a specific request to call a lawyer. With regard to the purpose of the request, whether stated or not, the following transpired during the examination-in-chief of Sgt. Lucier:

Q: Did he – was he referencing – can I ask you, was he referencing Mr. Boughner as someone that was a – to – to find out a lawyer; was there a discussion about contacting someone to – to talk to a lawyer or to find out what lawyer to use? A: No, sir, I just assumed that Mr. Boughner was someone in authority in his life and someone he wished to seek legal advice from. Q: Is there some – something beyond what you’ve told us to leave you with the impression – that impression? A: No, sir.

[24] In cross-examination, Sgt. Lucier testified that the request to call Bob Boughner was made following Cst. Danby’s question, “Would you like to call a lawyer now?” Sgt. Lucier knew of Bob Boughner and assumed he was an executive of the Windsor Spitfires, the team for which Mr. Johnson played. Sgt. Lucier never was challenged that the verbal response by Mr. Johnson went beyond requesting a call to Bob Boughner. Indeed, on multiple occasions, defence counsel, when posing questions to Sgt. Lucier, included only “he wanted to call … Boughner” as Mr. Johnson’s response.

[25] Mr. Johnson, on examination-in-chief, when first asked a general question about his recollection of the right to counsel exchange, testified, “I remember telling him that I would like to call an attorney….” When asked about his memory of Sgt. Lucier’s statement that Mr. Johnson could make a private call at the station, Mr. Johnson testified, “I remember him offering me a chance to speak with my – well, Bob Boughner, our head coach and owner of the team for a chance to get my – an attorney if need be.” Mr. Johnson then was asked why he wanted to call Bob Boughner in the following exchange:

Q: Why is it that you wanted to speak to Mr. Boughner particularly? A: Well, since I’m not really from the area I don’t really have any recollection of any attorneys that represent the Windsor area, so I knew that our team had a designated attorney that we would use for the players specifically, and that was more so the reason I would like to give – why I would have liked to have given Mr. Boughner a call. Q: Did you tell anyone that, that that was the reason? A: No, I didn’t tell anybody that? Q: So, you just said that you wanted to use Mr. Boughner to get a lawyer? A: Yes. Q: But you tell them the reason? You didn’t say what you’ve just told us now about Mr. Boughner had a lawyer for the team or something like that? A: No, I didn’t tell them specifically that I knew that we had a designated lawyer.

[26] During cross-examination, the Crown put a suggestion to Mr. Johnson that he did not tell the officers that the purpose of the call to Bob Boughner was to arrange for a lawyer. Counsel for the accused, Mr. Johnson, objected asserting that there was no basis for the question because both Sgt. Lucier and Cst. Lacoursiere said that was what Mr. Johnson told them. The Crown disagreed and, in open court, those portions of the evidence of both officers were replayed establishing that neither officer so testified. Thereupon, the Crown again put the same suggestion to Mr. Johnson. He responded, “No, I recall telling him that there was specific – there was a specific lawyer that our team used and that I would have liked to get a hold of Bob Boughner to ask for this information.” Mr. Johnson said this is what he told Sgt. Lucier. Then Mr. Johnson gave this answer to this question:

Q: And I suggest to you directly that you may have said you wanted to call Mr. Boughner, but you didn’t make any reference to the fact that that had anything to do with contacting a lawyer. A: No, I did. I – after they asked me if I wanted to contact a lawyer I said, “I would like to call Mr. Boughner.”

[27] Still later in his cross-examination, the following exchange was made.

Q: Alright. And I’m suggesting to you directly that you never said you’d like to call an attorney at your billet’s residence. A: I said I would like to call Mr. Boughner. Q: Well, earlier before this court just 15, 20 minutes ago when you were answering questions of Mr. Ducharme, you said you told them you wanted to talk to an attorney. A: I said that I wanted to talk to Mr. Boughner about getting an attorney. Q: You acknowledge that what you said is different? A: No. No.

[28] Still later, this issue was again raised as follows:

Q: And it wasn’t really hinged upon the purpose of the call being related to an attorney or a lawyer. Is it possible that that conversation happened just the way they [the officers] described? A: No, I – I definitely know that I had told them I was referencing Mr. Boughner because he would know our team attorney. Q: I – I’m not asking what was in your mind, but I’m talking about the words spoken between yourself and the police. I understand from you you’re saying, “I wanted to speak to Mr. Boughner because I know there’s a team – a team sort of affiliated lawyer.” A: Right. Q: I understand that you’re saying that, but is that something you told the police that, “Mr. Boughner will know who my lawyer is?” Did you – did you actually speak those words? A: Yes, I told them that. Q: Alright. A: I told Mr. Lucier that. Q: Alright. And is it possible, I’m asking, that you didn’t mention that part? A: No, it’s not possible. I know I did, for a matter of fact, because he told me that he promised that I would be able to do it at the station for those reasons. Q: Well, he told you you could call Mr. Boughner in private at the station? A: Right. Q: Alright. You acknowledge that? A: Yes. Q: Alright. And what I’m suggesting to you, sir, is that there wasn’t any message – reference to the lawyer, and I’m asking you if it’s possible that there was no reference … A: No, it’s … Q: … to the lawyer. A: No, there was reference to a lawyer.

[29] I accept and find that Mr. Johnson asked to call Bob Boughner. I accept and find that Mr. Johnson wanted to call Bob Boughner because Mr. Boughner, as his head coach and owner of the team, could give Mr. Johnson what he wanted, the name of the team’s designated lawyer.

[30] Mr. Johnson goes further, however. He claims he told the police that he wanted to call Mr. Boughner to get the identity of the team’s lawyer. This is the contentious issue.

[31] Although I do not challenge the credibility of Mr. Johnson here, I do have problems with the reliability of his evidence on this issue. Prominently, his evidence on this matter contains multiple and significant inconsistent statements. The first area concerns what Mr. Johnson said he told the police. Initially, when asked a broad, general question, Mr. Johnson said he told Sgt. Lucier he “would like to call an attorney….” Then, in response to the leading question, “So, you just said that you wanted to use Mr. Boughner to get a lawyer?”, he said, “yes.” On cross-examination, Mr. Johnson twice said he told the police simply, “I would like to call Mr. Boughner.” Still later in his cross-examination, Mr. Johnson resisted any suggestion that he never referenced a lawyer in his request to call Mr. Boughner. Mr. Johnson said he told the police, “I want to talk to Mr. Boughner about getting an attorney.”

[32] The next area of inconsistency is a subset of the first. To his lawyer, Mr. Johnson denied telling the police that the hockey team had a designated lawyer for its players. Mr. Johnson said, “I didn’t tell them [the police] specifically that I knew that we had a designated lawyer.” But, on cross-examination, Mr. Johnson said, “I recall telling him [Sgt. Lucier] that that … there was a specific lawyer that our team used and that I would have liked to get a hold of Bob Boughner to ask for this information.” Still later, Mr. Johnson said he told Sgt. Lucier there was a “specific lawyer that our team used” and referred to the lawyer as “our team attorney.”

[33] In addition to these internal inconsistencies, Mr. Johnson said he was 18 years of age at the time, an American, and knew nothing about the law or his rights. Mr. Johnson said he was frightened. He admitted having some difficulty remembering the events due to the lapse in time. Mr. Johnson said the event happened quickly and he was scared. He admitted not remembering everything but claimed he remembered what he told the police.

[34] I do not accept the evidence of Mr. Johnson that he included a reference to a lawyer when asking to speak with Bob Boughner. I reject it as not being reliable. I find that Mr. Johnson was young, inexperienced and frightened by his arrest. I believe Mr. Johnson when he said he wanted to call Mr. Boughner to get a lawyer, I just don’t believe he ever communicated that to the police.

[35] In contrast, I found the evidence of Sgt. Lucier on this issue to be straightforward and convincing. The officer had over 27 years of experience with the Windsor Police Service and was the ranking officer on the scene. He took contemporaneous notes and, at times during his evidence, referred to them. Sgt. Lucier was unable to give the exact words used in Mr. Johnson’s response to the lawyer question but said Mr. Johnson did not say “no”, as reported by Cst. Danby, but rather asked to call Bob Boughner. Moreover, according to Sgt. Lucier, Mr. Johnson did not reference a lawyer in his request to call Mr. Boughner. I accept this part of Sgt. Lucier’s evidence and find that Mr. Johnson responded to the lawyer question by asking to speak with Bob Boughner. I find that Mr. Johnson said nothing about a lawyer nor did he verbally provide any reason for wanting to call Bob Boughner.

4. Penile Swab Decision

[36] Sgt. Lucier transported Mr. Johnson from his home to the police station. He arrived with Mr. Johnson at the detention unit (also called the “cell” or “cells”) at about 4:26 a.m. and turned his prisoner over to the staff. Sgt. Lucier testified that he was aware Mr. Johnson was to be lodged in a “dry cell” on arrival. But, according to Sgt. Lucier, he did not make that decision and he did not remember the source of this knowledge.

[37] A “dry cell” is, as its name implies, a cell without water. It is a small cell with no toilet and no sink. There are two such cells in the detention unit of the Windsor Police. They are both beside the booking area and are monitored by video camera. Prisoners who are to be searched are placed in a “dry cell” to ensure there is no destruction or elimination of evidence from the person or clothing of the prisoner.

[38] Special Police Constable (“SPC”) John Nayduk took control of Mr. Johnson from Sgt. Lucier and, after a frisk search, placed Mr. Johnson in dry cell #2. SPC Nayduk was directed to place Mr. Johnson into a “dry cell” by his supervisor, Sgt. Gazdig.

[39] Sgt. Blake Gazdig was the cell supervisor that night. He was directed to put Mr. Johnson into a “dry cell” for search purposes by either Sgt. Lucier or S/Sgt. Bissonette or both. He could not further narrow the source of the direction.

[40] Sgt. Ann Hall, the initial investigating officer, had begun the arrest process by earlier calling Sgt. Lucier at about 3:35 a.m. In addition to directing him to the billet address of Mr. Johnson and providing the grounds for arrest, she also told Sgt. Lucier that Mr. Johnson may have blood on his person or clothing. Sgt. Hall also called her staff sergeant, S/Sgt. Bissonette. Sgt. Hall advised S/Sgt. Bissonette of the nature and status of the investigation and the need for an identification officer to attend the scene at the nightclub and to attend the detention unit because there may be evidence on the clothing and person of Mr. Johnson. Sgt. Hall also requested the Sexual Assault Treatment Centre, where the complainant had gone, to seize the complainant’s clothing.

[41] Cst. Ryan Jones was a member of the forensic identification branch of the Windsor Police Service and was on call that night. He received a telephone call from S/Sgt. Bissonette at about 4:00 a.m. to attend police headquarters. He arrived at headquarters at about 4:45 a.m. and spoke with S/Sgt. Bissonette, who was senior to him and was in charge of the station that night. Cst. Jones was directed to cells to “process” Mr. Johnson. Cst. Jones was informed that a sexual assault had taken place in a bathroom stall of a nightclub at midnight or one o’clock that morning. He was told the police had the bathroom scene under control and the complainant was at hospital. Cst. Jones “understood” it was vaginal penetration. He was informed that it was penile/vaginal penetration without a condom. Cst. Jones “believed” he was directed to take the penile swab by S/Sgt. Bissonette. When asked why he removed all of Mr. Johnson’s clothing, Cst. Jones responded, “That was the instruction that I received.”

[42] S/Sgt. Bissonette was not called as a witness at the voir dire.

[43] Cst. Jones conducted the procedure. He was with the Windsor Police Service for 15 years and assigned to the forensic identification branch for 8 years. He said he had received no training regarding the taking of penile swabs nor did he consult with any other officer about the process or procedure. He had done one or two penile swabs before Mr. Johnson.

[44] According to Cst. Jones, the objective of the penile swab of Mr. Johnson was to locate the DNA of the complainant, not the DNA of Mr. Johnson. Indeed, as the parties admitted for purposes of the voir dire, a DNA warrant for Mr. Johnson was obtained on August 16, 2013, and executed on August 21, 2013.

[45] Cst. Jones believed the collection of the clothing and the penile swab were lawfully authorized as a search incident to an arrest. Cst. Jones expressed his understanding as follows:

Q: In terms of doing a – what amounts to a strip search and a penile swab, did you have any notion in mind legally about certain limitations on those types of searches? A: Search incident to arrest includes collection of his clothing and swabs, so that’s exactly what I did. Q: Well, do you agree that having someone take all their clothes off, that would be strip search? A: If you want to call it that. I didn’t really search him. I was just collecting his clothing. Q: I see. So, if someone is about to be searched and you make him take all of his clothing off so that he’s naked, you don’t see that as a strip search? A: The purpose isn’t to search him necessarily as – as to take the clothing from him. Sometimes it includes only outer portions, sometimes inner portions. Q: Well, if either you or he take a penile swab, that would be searching him, wouldn’t it? A: I call it collecting of evidence. Q: I see. You don’t call that a search? A: I’m not searching really. Q: Searching, you think, is something that has to be hidden and you’re looking for, I gather? A: Technically I would think so. Q: But you didn’t have any kind of legal precedent that you were following? A: None that I’m aware of. Q: And do you have any particular protocol when you do these searches? A: As I did that day, to – to go to the private search room. Q: Would you agree that taking someone’s clothing off and doing a – a penile swab is at the – at a high degree of invasiveness of someone’s privacy? A: I wouldn’t call it invasive, but it’s - it’s definitely a privacy issue.

[46] Cst. Jones did not contemplate securing a warrant. Indeed, he questioned whether a warrant could be issued for a penile swab procedure. Rather, he relied on the collection of evidence as a search incident to an arrest.

[47] Cst. Jones believed there were urgent circumstances circumventing the need for a warrant for two reasons. Both reasons focus on the fact that a warrant takes time to secure and time is of the essence in a penile swab situation. First, the accused person, in this case Mr. Johnson, has to sit in a dry cell handcuffed while awaiting a warrant. According to Cst. Jones, this sequestration is necessary to avoid intentional or inadvertent destruction of the evidence sought. And second, DNA evidence degrades and the testing agency, the Centre for Forensic Sciences, has time limitations. Cst. Jones believed these time limits were 7 to 12 hours for penile swabs.[^1] Cst. Jones testified about his personal experience on the time necessary for securing a warrant, even a telewarrant. According to Cst. Jones, it was hours to one half of a day. Given the need for speed both to avoid continued discomfort to an arrested individual and to minimize DNA degradation, the warrant avenue was not a good choice. For these reasons, Cst. Jones did not consider a warrant.

5. Penile Swab

[48] Cst. Ryan Jones of the Windsor Police forensic identification branch attended the detention unit for the purpose of obtaining a penile swab, collecting clothes, and taking photographs, all from Mr. Johnson. Only three persons were involved in the actual procedure: Mr. Johnson, Cst. Jones and SPC Nayduk.

[49] There is some disagreement in the evidence on the time of arrival of Cst. Jones and on the length of time of the procedure. Cst. Jones said he arrived at the detention unit at 5:05 a.m. and was introduced to Mr. Johnson, who was handcuffed in a dry cell. Cst. Jones was not asked his time of departure. SPC Nayduk said Cst. Jones arrived at 5:10 a.m. at which time SPC Nayduk removed Mr. Johnson from the dry cell for Cst. Jones. According to SPC Nayduk, he removed Mr. Johnson from the search room at the end of the procedure and took Mr. Johnson directly to the telephone at 5:23 a.m. because Mr. Johnson had an incoming call from a lawyer, Mr. Ducharme. This telephone time is confirmed by the lawyer call log. Mr. Johnson, in his evidence, confirmed that he went directly from the search procedure to the telephone call. Mr. Johnson did not keep track of the time but testified that it “felt like” 15 to 20 minutes when he was naked in the search room.

[50] In regard to time, I accept the evidence of SPC Nayduk that the entire procedure from Mr. Johnson’s removal from the dry cell to his connection with a lawyer telephone call was roughly 13 minutes – from approximately 5:10 a.m. to approximately 5:23 a.m. The confirmation of the end date by the lawyer log is significant to me. The small discrepancy in the arrival time between Cst. Jones and SPC Nayduk may be due to different time pieces but, without an end time from Cst. Jones, that is impossible to determine. Regardless, the greater significance in this matter rests on the length of time rather than its precise start and stop times. More particularly, because SPC Nayduk’s end time is confirmed by the lawyer log, I also accept his start time. Mr. Johnson’s feelings on the length of time, while I accept as genuinely felt, are not helpful in determining the time of the procedure. They are estimates by a person in a stressful situation who was not keeping track of the time. Accordingly, I find Cst. Jones arrived at the dry cell for Mr. Johnson at about 5:10 a.m. to begin the process. Mr. Johnson was removed from the search room and taken to receive the lawyer’s call at about 5:23 a.m. which marked the end of the process.

[51] Mr. Johnson was removed from the dry cell and the handcuffs were removed. Cst. Jones did a quick search of the pockets of Mr. Johnson and found an iPhone, which was removed. Mr. Johnson then was escorted by Cst. Jones and SPC Nayduk to the search room. The search room is a bare room about 12 feet by 15 feet in dimension. It is away from the booking area, around the corner and down a hall. Both Cst. Jones and SPC Nayduk described it as larger than the dry cell with more privacy.

[52] There were always only three persons in the search room: Mr. Johnson, Cst. Jones and SPC Nayduk. SPC Nayduk was present for security purposes.

[53] Once in the search room, Cst. Jones advised Mr. Johnson that he would be collecting his clothing, examining him for injuries, and swabbing his penis. Although not going into further detail, Cst. Jones told Mr. Johnson that the penis swab was required due to the nature of the allegation, specifically the penile/vaginal penetration. Mr. Johnson was not asked for his permission to conduct a penile swab on his person. Indeed, under the circumstances, Mr. Johnson felt obligated to comply with the officer’s directions. Mr. Johnson was cooperative throughout the procedure. The officers conducted themselves in a professional manner.

[54] Cst. Jones took photographs of Mr. Johnson while in the search room. There is a disagreement over Mr. Johnson’s state of dress during the photographs. Cst. Jones testified he took six photographs in total. Four of the photographs, according to Cst. Jones, were taken while Mr. Johnson was fully clothed – one of his person, one of his face, and two of his hands. Two other photos, again according to Cst. Jones, were taken of a small scratch on the neck of Mr. Johnson with only his shirt off. Cst. Jones denied taking any photographs of Mr. Johnson when Mr. Johnson was nude.

[55] On this issue, Mr. Johnson was not consistent. At first, Mr. Johnson said he was not dressed at all when the photographs were taken. He said they were taken after the penile swab. Then, on cross-examination, Mr. Johnson said some of the photos were taken with his clothes on. When pressed, Mr. Johnson said, “I know I remember having pictures taken of me. I – I – I – you know, this is two and a half years ago. It – I didn’t know if it was before or after the swab, but either way I – I do remember.” Mr. Johnson continued to insist that some photos were taken when he was naked. Given Mr. Johnson’s significant inconsistencies and memory problems on this issue, I cannot and do not accept his evidence on this issue. I find it unreliable. I do accept the evidence of Cst. Jones and find that six photographs were taken in the search room, none of them while Mr. Johnson was fully undressed, and two while Mr. Johnson only had his shirt off.

[56] Cst. Jones was in control of the procedure. The collection of the clothing occurred first. Cst. Jones instructed Mr. Johnson to take off his clothing, one item at a time and hand each item to him. Mr. Johnson complied. When an item of clothing was removed by Mr. Johnson and handed to Cst. Jones, Cst. Jones took the item and placed the item into an individual paper bag which he brought with him. Cst. Jones placed each bag behind him and awaited the removal of the next item of clothing. This procedure continued until Mr. Johnson was completely undressed.

[57] When undressed, the penile swab procedure commenced. Cst. Jones instructed Mr. Johnson that he (Cst. Jones) would hand a moistened swab to him (Mr. Johnson) and Mr. Johnson was to rub the swab on his own penis. Mr. Johnson was directed to then hand the swab back to Cst. Jones. The procedure was simple and went according to the instructions. Cst. Jones moistened a sterile swab with a jar of distilled water the officer brought with him. The officer then handed the moistened swab to Mr. Johnson who rubbed his penis with the swab and handed the swab back to Cst. Jones. The officer put the swab in a box and sealed it. Only Mr. Johnson touched his own penis. Upon completion and before leaving for the lawyer telephone call, SPC Nayduk provided Mr. Johnson with a one piece blue jumpsuit, which Mr. Johnson put on.

[58] Cst. Jones estimated the time of the actual penis swab as five seconds. Cst. Jones estimated the time of complete nudity of Mr. Johnson as between one to two minutes with two minutes being the maximum time. SPC Nayduk testified that the whole procedure lasted 13 minutes from 5:10 at the dry cell to 5:23 at the lawyer call. On cross-examination he answered, “It’s possible.” to the question, “So, somewhere up to 13 minutes he could be naked in that room?” Mr. Johnson’s time estimate was reviewed above: it “felt like” 15 to 20 minutes while naked.

[59] I do not accept Mr. Johnson’s evidence on the time estimate for the reasons stated above. I also do not accept SPC Nayduk’s “possible” estimate. The 13 minute time interval included much more than Mr. Johnson’s nakedness and the penile swab. It includes, from the beginning, the introduction, the handcuff removal, the search and removal of the iPhone, the walk to the search room, Cst. Jones’ instructions, six photographs, the removal of clothing – item by item – with the placing of each item into a separate bag, the penile swab instructions, the penile swab procedure, the donning of the jumpsuit and the walk to the lawyer telephone call. I do not accept that Mr. Johnson was naked during the entire 13 minute period. Indeed, given the number of events between the dry cell and the lawyer call, I believe the estimate of Cst. Jones is the most accurate and reasonable. I heard no evidence that the procedure was elongated. Quite the contrary, I find the procedure was carried out in an efficient manner. I find the time of the complete nudity of Mr. Johnson – from the removal of the last item of his clothing and handing it to Cst. Jones to the putting on of the blue jumpsuit – to be no more than two minutes. I find the swabbing itself to be quick and I accept as accurate the five second estimate of Cst. Jones.

[60] It is uncontroverted that Mr. Johnson was completely naked when the swab was done. When asked for the reason, Cst. Jones admitted complete nudity was unnecessary to complete the penile swab. Cst. Jones agreed that Mr. Johnson could have worn a shirt, for example. According to the evidence of Cst. Jones, he did not give consideration to the state of dress of Mr. Johnson when taking the penile swab. It “just happened.” The collection of the clothing went first.

[61] There was a door to the search room and three people in the room at the time of this event. SPC Nayduk said the door was closed. Mr. Johnson said the door was open. Cst. Jones said the door probably was open. That was his recollection. Cst. Jones testified that he could never remember when he was in that search room when the door was closed. According to Cst. Jones, the door faced a brick wall. But, Cst. Jones conceded, any officer walking down that hallway could view the inside of the search room with an open door but testified no one walked by during the procedure involving Mr. Johnson. Mr. Johnson, too, admitted that he did not see anyone walk by. I find that the door of the search room was open during these events and that no one walked by during this time.

[62] There was a mounted camera clearly visible in the search room. Mr. Johnson saw it. Whether it was operational or not on March 18, 2013, is not clear. Cst. Jones assumed it was working but also understood that it was not used to monitor the search room. SPC Nayduk testified the video capabilities of the camera were disconnected “some time ago.” That was his understanding based on communication from his supervisor that it was disconnected because of an issue regarding its appropriateness. SPC Nayduk said he did not know for sure, but that was his understanding. SPC Nayduk did say that he knew for sure that the search room could not be monitored from the control area of the detention unit. Sgt. Gazdig testified he did not know whether the search room was videotaped or not. I find there was no contemporaneous monitoring of the procedure. Whether there was videotaping of the procedure was not clarified at the voir dire.

6. Lawyer Call

[63] Mr. Johnson first spoke with a lawyer, Patrick Ducharme, immediately after the penile swab procedure at 5:23 a.m. This was an incoming telephone call to the jail from Mr. Ducharme for Mr. Johnson. According to the detention unit’s lawyer call log, which I accept as accurate, this first call began at 5:23 a.m. and concluded at 5:30 a.m. Mr. Johnson never made an outgoing call from the detention unit and none is noted in the detention unit’s lawyer call log.

[64] Sgt. Lucier never gave Mr. Johnson an opportunity to call Bob Boughner at the station, nor did Sgt. Lucier communicate Mr. Johnson’s request to any of the cell officers. From shortly after entering the detention unit at or about 4:26 a.m. until approximately 5:10 a.m., when Cst. Ryan introduced himself to Mr. Johnson, Mr. Johnson was in the dry cell and handcuffed behind his back. At no time was Mr. Johnson offered the use of a telephone, a telephone book or a list of lawyer telephone numbers. At no time in the detention unit was Mr. Johnson read his right to counsel.

[65] With regard to Sgt. Lucier’s failure to advise the detention unit of Mr. Johnson’s request to call Bob Boughner, Sgt. Lucier responded negatively when asked, “Any particular reason why not?” He said he did not believe he communicated Mr. Johnson’s request to any cell officer, he did not have it in his notes, but he could not say whether he did or did not. No detention officer has any memory of being advised by Sgt. Lucier of Mr. Johnson’s request. I find that Sgt. Lucier never communicated Mr. Johnson’s request to any cell officer.

[66] Speaking generally, Sgt. Gazdig testified he normally would try to accommodate a prisoner’s request to speak to a non-lawyer to facilitate a call to a lawyer. Sgt. Gazdig recalled the night was “fairly busy” which could cause delays. SPC Nayduk also said that night was “fairly busy” as it was St. Patrick’s Day. I take judicial notice that Sunday, March 17, 2013, was St. Patrick’s Day.

[67] The searching officer, Cst. Jones, testified that he assumed Mr. Johnson had not called a lawyer even though he had no discussion with any officer on the subject. Cst. Jones found Mr. Johnson handcuffed in a dry cell. Cst. Jones testified he “definitely” would not allow a lawyer call until after he had completed his search of Mr. Johnson. Cst. Jones did not offer Mr. Johnson an opportunity to contact a lawyer. Cst. Jones neither requested nor received any instructions from S/Sgt. Bissonette regarding legal counsel or delayed calls to counsel.

[68] Cst. Jones testified that he probably would not have suspended his evidence collection to accommodate a lawyer call for fear of the loss of evidence. The officer reasoned that if a person is left alone in a room he would “have the opportunity to clean themselves up”. Once the person is searched, he then is provided with the opportunity to contact legal counsel. According to Cst. Jones, “That’s the way we’ve always done it. That’s – that’s the process.” To the prosecutor, Cst. Jones responded as follows:

Q: To your understanding, do you know whether Mr. Johnson was entitled to speak to a lawyer as a result of your decision to facilitate a penile swab? A: The collection of evidence is normally done before any sort of contact with lawyer. Q: And … A: The potential to lose any evidence while he’s not being monitored exists, so … Q: Where does your understanding of whether he’s entitled to lawyer develop from? That – have you ever received any training with respect to those sort of obligations? A: Well, as soon as practicable. Q: What do you mean by that? A: Well, it wouldn’t occur before we have the chance to examine or collect any evidence from him. Q: Is there a policy as it relates to that? A: A policy? I’m not sure of your meaning. Q: Well … A: In order for him to be provided with a private place to speak, he would be alone with himself. So – I can’t let him be in control of any of the evidence unmonitored.

[69] Sgt. Gazdig, the cell supervisor that night, concurs generally with Cst. Jones. The practice, once a person is placed into a dry cell for a search, is to search first then provide the opportunity to call counsel. If a prisoner is given a lawyer call, according to Sgt. Gazdig, an officer would have to be present to make sure evidence is not destroyed. Sgt. Gazdig said that while that procedure is possible, he doesn’t recall it ever happening. But, according to Sgt. Gazdig, the room for making lawyer calls has a window where an officer can watch the person making the call. Sgt. Gazdig conceded that it could have been done with Mr. Johnson.

[70] Cst. Jones never was asked about the particular facilities available for lawyer calls at the Windsor Police Service detention unit as described by Sgt. Gazdig.

7. Penile Swab Use

[71] Cst. Jones sent the penile swab to the Centre of Forensic Sciences. The Centre of Forensic Sciences report was made an exhibit. It reports the results of the comparison of the DNA from the penile swab from Mr. Johnson and the DNA from a sample from the complainant. It concludes that the complainant’s DNA cannot be excluded as the source of the female DNA found on the penile swab. It estimates that the probability that someone other than the complainant would share the same DNA found on the penile swab as 1 in 36 trillion.

[72] The complainant’s evidence at the preliminary hearing in this case was made an exhibit. For purposes of this motion, this evidence shows that the complainant had an incomplete memory of the events of the night in question.

ISSUES

1. Was the warrantless, non-consensual taking of a penile swab from Mr. Johnson a violation of s. 8 of the Charter?

[73] The defence argues that genital touching is inherently unique. It is a humiliating affront to human dignity to functionally compel a person to strip naked in front of strangers and then to touch oneself in one’s most private of areas. The defence says the penile swab search here was unlawful because it was taken without a warrant and without lawful consent. The defence principally relies on the majority opinion in the Alberta Court of Appeal case of R. v. Saeed, 2014 ABCA 238, [2014] A.J. No. 739, which, in turn, rests largely on the decision of the Supreme Court of Canada in R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34. The only exception to the warrant requirement, according to the defence, is when there is demonstrable exigent circumstances. The defence position is adequately summarized in paragraph 62 of the Saeed decision which reads as follows:

[U]nless a statute otherwise provides, a warrant is required for any intimate search and seizure for bodily samples from the person, absent consent, absent evidence which establishes that the time required to apply for a warrant could result in the bodily samples sought significantly deteriorating or disappearing before a search and seizure under warrant could be undertaken or absent evidence of extreme exigency. Such a search cannot be justified, without warrant, simply on the basis on being incidental to arrest, without more.

[74] The defence says that the penile swab search here was without a warrant, without lawful consent, and without sufficient proof of exigent circumstances. Additionally, the defence claims the manner of the search was unreasonable, pointing to the claimed failure of the police to comply with six of the factors set forth in the Supreme Court’s seminal strip search case of R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81. In summation, according to the defence, the penile swab search of Mr. Johnson violated his rights under s. 8 of the Charter.

[75] The Crown concedes the absence of a warrant and lawful consent but says the penile swab search of Mr. Johnson was lawful as a search incident to an arrest. In support, the Crown cites principally to a recent decision from the Manitoba Court of Appeal of R. v. Laporte, 2016 MBCA 36, [2016] M.J. No. 104, which, in turn, rests largely on two Supreme Court of Canada decisions, Golden and R. v. Fearon, 2014 SCC 7, 2014 S.C.C. 7, [2014] 3 S.C.R. 621. Moreover, the Crown asserts the manner in which the search was conducted was reasonable. According to the Crown, the penile swab search of Mr. Johnson did not violate s. 8.

[76] The legal question now before me regarding penile swabs and s. 8 of the Charter is unsettled. Two divergent opinions have emerged. One, chiefly led by the majority opinion in Saeed, holds that a penile swab search cannot be justified on the basis of a search incident to an arrest. Rather, more is required: a warrant, lawful consent, or demonstrable exigent circumstances. The other, now best expressed in Laporte, holds that the common law exception to the warrant requirement of a search incident to an arrest is applicable to a penile swab search with certain added requirements.

[77] There are a number of trial decisions in this area that roughly fall into one camp or the other. But, again, no dominant position has emerged: see R. v. M.T., 2016 NUCJ 9, [2016] Nu. J. No. 13; R. v. Harasemow, 2014 BCSC 2287, [2014] B.C.J. No. 3001; R. v. Ali, 2014 ONSC 6609, [2014] O.J. No. 5887; R. v. Amey, 2013 ONSC 5108, [2013] O.J. No. 3789; R. v. Pun, 2012 ONSC 5305, [2012] O.J. No. 4418; and R. v. Hodgson, [2008] O.J. No. 4748 (S.C.). The Ontario Court of Appeal has not decided the issue.

[78] The penile swab issue is now before the Supreme Court of Canada in Saeed. Leave to appeal the decision of the Alberta Court of Appeal was granted on April 30, 2015. The appeal was argued on December 1, 2015. The judgment was reserved. Because of the age of this case as well as its particular facts and issues, which are not identical to those in Saeed, I decline to adjourn the scheduled trial date of June 20, 2016, to wait for the ruling.

A. Governing Principles

[79] Section 8 of the Charter provides: “Everyone has the right to be secure against unreasonable search or seizure.” This is a constitutional right to privacy. Its core purpose is to protect individuals from unjustified state intrusions. To accomplish this purpose, the emphasis is on prior authorization rather than subsequent validation. Thus, warrantless seizures are presumed to be unreasonable and contrary to s. 8: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, at pp. 109-110, [1984] S.C.J. No. 36 [Hunter]. This means that when the search is without a warrant, the Crown, the party seeking to rebut this presumed unreasonableness, bears the onus of proving that the warrantless search was reasonable: see Hunter.

[80] Not all warrantless s. 8 seizures are contrary to the section; only those seizures which are unreasonable breach s. 8. A warrantless search will be reasonable if: 1) the search was authorized by law; 2) the authorizing law was reasonable; and 3) the seizure was conducted in a reasonable manner: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, [1987] S.C.J. No. 15, at para. 23. If all three elements are satisfied, then there is no s. 8 violation. If any one of the three is not satisfied, then there is a s. 8 violation.

[81] Here, the Crown asserts the penile swab search of Mr. Johnson was authorized by law pursuant to the common law police power of search incident to arrest.

[82] Searches incident to arrest are a long recognized exception to the general rule that warrantless searches are presumptively unreasonable. The existence and scope of the police power to search a lawfully arrested person was first heard by the Supreme Court in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, [1990] S.C.J. No. 10. There, L’Heureaux-Dube J., writing for the Court, held:

[I]t seems beyond question that the common law as recognized and developed in Canada holds that the police have power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him.

Cloutier, at para. 49.

[83] Thus, the authority to search stems from the fact of the arrest. This, in turn, mandates a lawful arrest. If the arrest is unlawful, so too is the subsequent search: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 13. In addition, to be lawful, the search must relate to the arrest and the manner of search must be reasonable: see Cloutier, at paras. 61 & 62 and Stillman, at para. 27.

[84] While the existence of this authority is unquestioned, its scope continues to be the subject of contention. Indeed, this is the core question before me, whether a penile swab search is included in the search incident to arrest power.

[85] With regard to the scope of the police search power under this common law authority, three Supreme Court decisions require scrutiny: Stillman, Golden, and Fearon.

[86] In Stillman, there were multiple searches: The officer passed his gloved hand through the accused’s hair to remove hair. The officer combed the accused’s hair to remove hair. The officer clipped and pulled out more of the accused’s hair. The officer made the accused pull out hair from the accused’s own pubic area. Finally, a dentist made teeth impressions and took buccal swabs from the mouth of the accused: see Stillman, at para. 44. The hair and buccal swab samples were taken to obtain the accused’s DNA for comparison with the DNA of the semen found in the deceased woman’s vagina. The teeth impressions were taken to compare with the bite marks found on the deceased woman: see Stillman, at paras. 4-6, 9, 29, 42 & 43.

[87] Cory J., for the majority, found that the common law power did not include the power to seize bodily samples from an accused without a warrant: see Stillman, at para. 49. He stressed that the bodily substances seized from the accused were in “no danger of disappearing” nor would the teeth impressions change. Justice Cory stated,

It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. … In addition, LaForest J. observed in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 431-32, “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.

Stillman, at para. 42.

[88] In addition, Justice Cory noted the then new law passed by Parliament for warrants for the seizure of bodily substances for purpose of DNA testing and stated, “If this type of invasive search and seizure came within the common law power of search incident to arrest, it would not have been necessary for the government to create a parallel procedure for the police to follow.”: see Stillman, at para. 43.

[89] Subsequently, in Golden, the Supreme Court addressed whether the search incident to arrest power was sufficiently broad to include the authority to strip search an arrested person.

[90] The Court first defined a strip search as “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.”: see Golden, at para. 47. The Court distinguished a strip search from a more intrusive body cavity search and then concluded that the three procedures in that case were strip searches: see Golden, at paras. 47-48. This categorization included the second procedure, which involved physical police contact with the person’s buttocks while forcibly removing a package of cocaine from between the buttocks. According to the Court, this fell short of being a body cavity search: see Golden, at para. 48.

[91] The Golden Court made it clear that a more intrusive search of a person involves a greater degree of infringement of personal dignity and privacy. This commands a higher degree of justification and increased constraints on the manner of the search: see Golden, at para. 87. The Court stressed different types of searches raise different constitutional considerations: see Golden, at para. 88.

[92] With regard to strip searches, the Court found them to be “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out …”: see Golden, at para. 90. But, the Court concluded that the search incident to arrest power was broad enough to include the authority to strip search a person as long as added requirements for both the search justification and the strip search execution are satisfied.

[93] The Court addressed the needed higher degree of justification for this more intrusive search. In addition to the standard search incident to arrest elements of 1) a lawful arrest and 2) the strip search must be related to the reasons for the arrest, more is required than the usual reasonable and probable grounds to make the arrest. There must be additional grounds pertaining to the purpose of the strip search itself. “[T]he police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary to the particular circumstances of the arrest.”: see Golden, at para. 98. The strip search itself, as a high degree of interference with individual freedom and dignity, must be justified separately.

[94] With regard to the strip search execution, its reasonableness must be judged against a framework provided by the Court. The Court, in Golden, set out the guidelines in question form as follows:

1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
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?
9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the opportunity of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

Golden, at para. 101.

[95] Of course, like all warrantless searches, the Crown must prove, on a balance of probabilities, that the reasonable and probable grounds for the strip search existed and that the strip search itself was conducted in a reasonable manner: see Golden, at para. 105.

[96] In Fearon, the Court again grappled with the scope of the search incident to arrest power; this time in the context of cell phones and similar devices found on the person arrested: see Fearon, at para. 1. Although the object searched in Fearon is quite different than what confronts this court, the analytical framework provided by the Supreme Court is quite helpful.

[97] The approach in resolving the proper scope of the search incident to arrest power in a novel context must begin with going back to fundamental principles.

In order to resolve the issue, we must strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures. In short, we must identify the point at which the “public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60.

Fearon, at para. 3.

[98] A court must weigh the competing interests in a way which is consistent with the Charter right to be protected against unreasonable intrusion by the government: see Fearon¸ at para. 14. However, the Court recognized, this area, by its nature, precludes easy categorical or general answers: see Fearon, at para. 13.

[99] Calling the search incident to arrest power “extraordinary” because it requires neither a warrant nor reasonable and probable grounds, the Court emphasized that its repeated affirmation of that police power is premised on reasonable searches within the meaning of s. 8: see Fearon, at para. 45. When necessary to conform this power to s. 8 principles, the Court has modified the common law power as seen in Stillman and Golden: see Fearon, at para. 44. The need for these modifications concerns the second prong of the Collins test in determining the lawfulness of a warrantless search: the authorizing law itself, in this case common law, must be reasonable in the context of the particular search.

[100] After balancing the competing interests and recognizing the potential for significant privacy invasions by the search of a cell phone, the Court concluded that the general framework of the search incident to arrest power must be modified to satisfy the reasonableness requirement of s. 8: see Fearon¸ at para. 58. The Court rejected a categorical prohibition of a warrantless search of cell phones as part of a search incident to arrest. The Court found that it was possible to impose “meaningful limits on the purposes, threshold and manner” of such a search: see Fearon, at para. 63. The Court thereafter reviewed other types of modifications. This included the imposition of a reasonable and probable grounds requirement as found in Golden: see Fearon, at paras. 66-68. This also included the imposition of an exigent circumstances requirement: see Fearon, at paras. 69-71.

[101] With regard to cell phone searches under this common law power, the Court modified the common law in this context by adding three requirements: 1) the scope of the search of the cell phone must be tailored to the lawful purpose for which it was made; 2) the search is permitted restrictively, only “when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest.”; and 3) the officers must make detailed notes of what is searched and how it was searched as “encouraged” in strip searches in Golden: see Fearon, at paras. 74-82.

[102] With regard to the note-taking requirement, the Court emphasized as follows:

In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

Fearon, at para. 82.

[103] In that case, the Court concluded the Crown had not met its burden of establishing that the search incident to arrest was lawful. The Court stressed the lack of a good record stating:

In my view, that burden is not met, absent detailed evidence about precisely what was searched, how and why. That sort of evidence was lacking in this case, and the lack of evidence, in turn, impedes meaningful judicial review of the legality of the search. As I mentioned earlier, this after-the-fact review is particularly important in the case of warrantless searches where there has been no prior judicial screening that occurs when a warrant is required.

Fearon, at para. 87.

[104] I now turn to the two Court of Appeal cases dealing directly with the issue before this court, whether a penile swab falls within the police power of search incident to arrest.

[105] The Alberta Court of Appeal decision in Saeed, now before the Supreme Court, was rendered before the Supreme Court’s decision in Fearon. It thus did not have the benefit of the analytical framework provided therein. That said, the majority ruled there was a complete prohibition of warrantless penile swab searches under the common law search incident to arrest power. The majority found that Stillman governed the disposition stating,

The relevant question is not whether the seizure occurs from the surface of or from within any part of the body, but whether the nature of the area from which material is taken is such that the search and resulting seizure may infringe upon the person’s bodily dignity in such a way as to constitute the ultimate affront to human dignity. A typical person would judge an affront to their dignity of a greater nature through the taking of a penile swab than a dental impression, notwithstanding the internal nature of the latter search and seizure.

Saeed, at para. 55.

[106] The Manitoba Court of Appeal in Laporte disagreed. The Manitoba court applied the analytical framework espoused in Fearon. The court first addressed whether the taking of penile swabs fell within the existing general framework of the common law power of search incidental to arrest: see Laporte, at para. 41. The court considered the competing interests. The Court noted that strip searches fall within the scope pursuant to Golden. The Court acknowledged the important law enforcement purpose of a penile swab, specifically the collection of bodily samples of a complainant from the body of an accused. Resultantly, the Court distinguished Stillman: see Laporte at paras. 42-43. The court concluded that the existing general framework of the common law power of search incident to arrest included penile swabs: see Laporte, at paras. 38-44.

[107] The Manitoba court then addressed what it considered the more difficult question, whether the general framework of search incident to arrest had to be modified for the taking of penile swabs to be in compliance with s. 8: see Laporte, at para. 45. This too led to a balancing of the competing interests between law enforcement and privacy. The court found both interests significant: see Laporte, at paras. 49-50. Finding that a penile swab search entails a greater interference with bodily integrity than a normal strip search, the court concluded that the level of justification for a penile swab search is high: see Laporte, at paras. 50-57.

[108] The Manitoba court then used Golden as a model and, pursuant to the analytical framework of Fearon, modified the requirements of the search incident to arrest as applied to penile swabs. This was to comply with the reasonableness requirement of s. 8: see Laporte, at para. 58. Thus, as justification for a penile swab search, the Manitoba court added the requirement of reasonable and probable grounds as follows:

The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest….

Laporte, at para. 61.

[109] With regard to the penile swab execution, the Laporte court modified the Golden factors as a framework to judge the reasonableness of the manner of the search. The Manitoba court set out its penile swab execution guidelines as follows:

1. Was the penile swab conducted at the police station and, if not, why not?
2. Was the penile swab conducted in a manner that ensured the health and safety of all involved?
3. Was the penile swab authorized by a police officer acting in a supervisory capacity?
4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?
5. Was the number of police officers involved no more than is reasonably necessary in the circumstances?
6. Was the minimum force that was necessary used to conduct the search?
7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab?
9. Was the accused person given the opportunity to swab himself and if not, why not?
10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person’s back to avoid genital exposure? and
11. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?

Laporte, at para. 61.

[110] In conclusion, the Manitoba court said its requirements provided the appropriate balance between privacy and law enforcement interests: see Laporte, at para. 62.

B. Principles Adopted

[111] While none of the penile swab decisions are binding on this court, I find the Manitoba Court of Appeal decision in Laporte to be most persuasive and I chose to follow it with some variations. In my opinion, the Fearon/Golden approach is correct.

[112] First, I agree with Laporte that the general framework of the common law power to search incident to arrest does apply to penile swab searches. I understand both the importance of penile swab evidence as well as the significance of the interference with human dignity upon the taking of such evidence. But, I too distinguish Stillman on its facts. There the court rightly found great significance in the nature of the substance sought from the accused, namely his own DNA sample. That leads to areas of privacy well beyond a one time intrusion of a sample taking. Moreover, when seeking the DNA of an accused, it is unquestioned that DNA is fixed, it will not change over time. Thus, there is no pressing need for the sample to be taken today rather than next month, or even next year. Penile swabs are fundamentally different. Their purpose is not the accused’s DNA, but rather the DNA of another on the skin of the accused. The evidence sought is a link between that part of the accused’s anatomy and bodily fluids containing DNA from another. Moreover, in contrast with a DNA sample sought from an accused, the DNA is not within or part of the body of the accused. It is typically on the surface or skin of an accused, leaving it vulnerable to removal or contamination whether by time, advertence, or inadvertence. Thus, in my opinion, Stillman does not control. A categorical prohibition of penile swabs from the search incident to arrest power should not be adopted.

[113] Second, I agree with Laporte that the existing search incident to arrest framework must be modified to be in compliance with s. 8. The Supreme Court in Fearon and Golden added a reasonable and probable grounds requirement. Laporte did likewise. I agree. I also agree with the requirement as set forth in Laporte, at para. 61.

[114] The Supreme Court in Fearon also noted the potential added requirement of exigent circumstances: see Fearon, at paras. 69-72. The Manitoba court, in Laporte, did not speak to the issue directly. The defence, however, in submissions urged me to add this as a requirement. Thus, I address the issue.

[115] There is no requirement to establish exigency in the general framework of the common law power of search incident to arrest. It has arisen, but only indirectly, on the issue of whether the search was truly incidental to the arrest in a delayed search of a car: see Caslake. I decline to add it as a requirement here. Because the fleeting nature of the evidence sought mandates promptness, such a requirement adds nothing to the balancing of the two competing interests.

[116] With regard to the guidelines for the reasonable execution of a penile swab search, the modified Golden factors in Laporte, I adopt them as correct and appropriate with two modifications. First, I adopt the Golden wording of factor 8 as modified for penile swab searches. I have read no case or comment advancing the need for complete nudity for the taking of a penile swab. Factually, it was not advocated here. Thus, it should read as follows:

8. Was the penile swab conducted as quickly as possible and in a way that ensured that the person is not completely undressed at any one time?

[117] I also change factor 10. The Laporte court included a “respectful” videotaping of the procedure. Although I believe proper documentation of the procedure, including videotaping, is essential, I believe it inappropriate to make videotaping a fixed requirement in all circumstances. Thus, in my opinion, factor 10 should simply read as follows:

10. Was the procedure conducted in a respectful manner?

[118] Whether a recording should or should not be done in a particular case can be resolved on a case-by-case basis with both proper documentation and respectfulness as guides.

[119] To summarize, a penile swab search will comply with s. 8, pursuant to the common law power of search incident to arrest, where:

1. The arrest was lawful;
2. The penile swab search was incidental to this arrest - police had reasonable and probable grounds to believe that the penile swab would provide relevant evidence related to the arrest; and
3. The manner of the penile swab search was reasonable in consideration of the following guidelines:
4. Was the penile swab conducted at the police station and, if not, why not?
5. Was the penile swab conducted in a manner that ensured the health and safety of all involved?
6. Was the penile swab authorized by a police officer acting in a supervisory capacity?
7. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?
8. Was the number of police officers involved no more than is reasonably necessary in the circumstances?
9. Was the minimum force that was necessary used to conduct the search?
10. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
11. Was the penile swab conducted as quickly as possible and in a way that ensured that the person is not completely undressed at any one time?
12. Was the accused person given the opportunity to swab himself and if not, why not?
13. Was the procedure conducted in a respectful manner? and
14. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?

[120] These steps satisfy both the three elements of Collins to determine the reasonableness of a warrantless search as well as the three elements necessary to establish a lawful search incident to arrest in the context of a penile swab search.

C. Principles Applied

[121] I now assess the facts to the law on penile swab searches as found above.

1. Was the arrest lawful?

[122] An arrest is lawful if the police officer subjectively believes there are reasonable and probable grounds that the arrest target committed an indictable offence and, viewed objectively, those grounds are reasonable. R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at p. 324. Moreover, the officer who forms the grounds to arrest need not be the arresting officer; she may instruct another officer to perform that duty. Debot, at paras. 48-50.

[123] Here, the defence does not challenge the lawfulness of the arrest of Mr. Johnson. I agree there was ample evidence to establish that Sgt Hall, as the initial investigating officer, had obtained reasonable and probable grounds to arrest Mr. Johnson for sexual assault. She believed it and objectively the grounds were reasonable. Sgt Hall was told by the complainant that she was sexually assaulted earlier that night by Mr. Johnson in a bathroom stall of a downtown nightclub. She said she was a virgin and the officer saw blood on the complainant’s pants. Sgt Hall instructed fellow officer, Sgt Lucier, to arrest Mr. Johnson, gave him the grounds to arrest, and directed him to the Windsor home of Mr. Johnson. Sgt Lucier, with two other officers, went to the home and arrested Mr. Johnson for sexual assault.

[124] I find the arrest of Mr. Johnson was lawful.

2. Was the penile swab search incident to the arrest? Did the police have reasonable and probable grounds that the penile swab would provide relevant evidence related to the arrest?

[125] The defence concedes the first question admitting that there was a nexus established between the procedure and the nature of the crime for which Mr. Johnson was arrested.

[126] I agree, but in a penile swab context, as in a strip search context, this standard search incident to arrest element is expanded due to the intrusiveness of the particular procedure. Simple grounds to arrest alone are not sufficient. A nexus alone between the arrest and the search is insufficient. More is needed. Here, there must be reasonable and probable grounds to believe – both subjectively and objectively – that a penile swab would provide relevant evidence related to the arrest.

[127] To answer this question, I first turn to the original investigating officer. Sgt. Hall was told by the complainant that she was sexually assaulted recently in a bathroom stall by Mr. Johnson. The complainant said she was a virgin leading to bleeding. Sgt. Hall saw blood on the pants of the complainant. When Sgt. Hall spoke to Sgt. Lucier about arresting Mr. Johnson, she also told him that Mr. Johnson may have blood on his person or his clothing. Sgt Hall asked the Sexual Assault Treatment Centre to seize the complainant’s clothing. Sgt. Hall called her staff sergeant, S/Sgt Bissonette, and advised her of the nature and status of the investigation and of the need for an identification officer to attend the crime scene, the bathroom stall. Sgt Hall also voiced the need for an identification officer at the detention unit because there may be evidence on the clothing and person of Mr. Johnson. S/Sgt Bissonette, in turn, telephoned the identification officer on call, Cst. Jones. Cst. Jones was directed to cells to “process” Mr. Johnson. Cst. Jones was informed that a sexual assault had taken place in a bathroom stall of a nightclub at midnight or one o’clock that morning. Cst. Jones “understood” it was vaginal penetration. He was informed that it was penile/vaginal penetration without a condom. Cst. Jones “believed” he was directed to take the penile swab by S/Sgt. Bissonette. He was instructed to remove all of Mr. Johnson’s clothing. Cst. Jones conducted the penile swab search.

[128] Prior to the arrival of Cst. Jones, Mr. Johnson was placed in a “dry cell” in handcuffs to prevent the destruction or elimination of any evidence on his clothes or on his person. The direction to place Mr. Johnson in a “dry cell” was made by the officer in charge of the detention unit, Sgt. Gazdig. Sgt Gazdig said he was so instructed by either Sgt. Lucier or by S/Sgt. Bissonette. Sgt. Lucier said he did not make that decision nor did he so instruct Sgt. Gazdig. We did not hear from S/Sgt. Bissonette.

[129] The officers did not expressly say that they had subjective grounds to believe that a penile swab of Mr. Johnson would provide evidence in this sexual assault case. They were not asked. However, on the whole of the evidence, I must and do infer that the officers had said grounds. I find that the key officers involved, Sgt Hall, S/Sgt Bissonette, and Cst. Jones, all subjectively believed they had reasonable and probable grounds that swabbing Mr. Johnson’s penis would provide evidence relevant to the sexual assault arrest of Mr. Johnson. And, considering all of the evidence, I also find this belief to be objectively reasonable.

[130] I find the Crown has proved this essential element for a lawful penile swab search.

3. Was the penile swab search conducted in a reasonable manner considering the guidelines?

1) Was the penile swab conducted at the police station?

[131] Yes, the penile swab was conducted at the police station.

2) Was the penile swab conducted in a manner to ensure health and safety?

[132] Yes, health and safety was not an issue here.

3) Was the penile swab authorized by a supervisory police officer?

[133] Yes, although the evidence is not perfect, I am satisfied that S/Sgt Bissonette was the ultimate authorizing officer. In addition to holding the rank of staff sergeant, she was in charge of the station that evening. I decline to accept the defence challenge to this factor.

4) Were the officers involved of the same gender as Mr. Johnson?

[134] Yes, the two officers involved in the penile swab procedure, Cst. Jones and SPC Nayduk, are both male. Mr. Johnson is a male.

5) Was the number of officers involved no more than reasonably necessary?

[135] Yes, there were two officers involved. One conducted the procedure and the other was present for security. This was a jail setting with a newly arrested individual. Having one officer present for security, under the circumstances, was reasonable.

[136] The defence challenges this factor asserting that there were more officers involved because of the contemporaneous monitoring via the camera in the room. I reject this challenge. I have found that there was no contemporaneous video monitoring.

6) Was any force used in the procedure necessary?

[137] There was no force used. Mr. Johnson took instructions and was cooperative.

7) Was the penile swab carried out in a private area such that no one other than those involved could observe the search?

[138] The private search room was appropriate. It is away from the processing area of the detention unit. However, I find privacy concerns. The door was left open. SPC Nayduk testified it was closed but I find, in this regard, the evidence of both Cst. Jones and Mr. Johnson more compelling. Although I find no person other than those in the search room saw what was happening, any person walking down that hallway could have seen in the room. Only the brevity of the procedure and happenstance led to no one seeing. This type of procedure must be private. The door should be closed. An open door was a factor leading to a s. 8 breach in another, earlier strip search case by the Windsor Police in R. v. Muller, 2014 ONCA 780, at para. 83.

[139] In addition, there was a camera in the room at the time of the procedure and it remains unknown whether it videotaped the proceedings. The Crown failed to prove it did not. Perhaps more importantly, the record is silent as to the police procedure regarding access to any videotape of such a sensitive and private procedure. I simply am at a loss on who has access to such videos. Again, the record is silent. This leads to significant and unanswered privacy concerns. The failure of the Windsor Police to have rules governing access to a videotape of a strip search also was part of the same Muller case at para. 75.

8) Was the penile swab conducted as quickly as possible and in a way that ensured that Mr. Johnson was not completely undressed at any one time?

[140] The swab procedure itself was conducted quickly and efficiently. The swab was completed in a few seconds. Mr. Johnson’s nudity was no more than two minutes. The whole procedure from beginning to end – including walking to and from the search room – was no more than thirteen minutes.

[141] But, the way in which it was done is unacceptable. The swab was conducted while Mr. Johnson was completely naked. It is unnecessary to conduct a penile swab while the arrestee is nude and Cst. Jones so admitted. It happened because Cst. Jones chose to collect the clothes first leaving Mr. Johnson with nothing on when Cst. Jones then undertook the penile swab procedure.

9) Was Mr. Johnson given the opportunity to swab himself?

[142] Yes, Mr. Johnson was given the opportunity to swab himself and did so. No officer touched Mr. Johnson’s penis.

[143] The defence challenges this factor as worded in Golden for a strip search. In that context, the factor includes no physical contact. But that applies to a strip search which, by definition, is a visual search. This procedure, a penile swab search, by definition requires a touching, a swab. The Golden factor does not apply. I reject the defence challenge in this, a penile swab context.

10) Was the procedure conducted in a respectful way?

[144] Yes, the procedure was conducted professionally and respectfully. The defence raised the issue of the existence of a camera in the search room. It was present. Mr. Johnson noted its presence. On the evidence I find that there was no contemporaneous monitoring. However, whether it was taping or not, the evidence is too equivocal to conclude that it was not. That said, I do not find that the camera’s presence and its taping potential negated the otherwise respectful procedure. Although noting its presence, Mr. Johnson gave no evidence that it added to his discomfort. In addition, photographs of Mr. Johnson were taken in the search room but they too were taken respectfully and none were taken while Mr. Johnson was completely undressed.

11) Was a proper record kept of the reasons for and the manner of the search?

[145] No, a proper record was not kept. The record on the reasons for and on the manner of the search was a problem. Who made decisions and why at times had to be found inferentially rather than from direct evidence. There was a conflict in the times documented by the two officers involved. No one kept exact times of the various procedures conducted. All had to be pieced together from present memory and sometimes vague notebooks. The Supreme Court in Fearon stressed the importance of a good record for proper judicial review in a search incident to arrest cases. It was lacking here.

[146] I add that a video recording of the procedure would have been helpful documentation of the actual event. Some suggest it adds to the intrusiveness. Perhaps marginally so, but if there are strict and followed access rules and the taping itself is done in a respectful manner, a tape of the actual procedure would provide good evidence for a reviewing court. A videotape was present and played for the trial court in the Muller case. R. v. Muller, 2011 ONSC 4892, at para. 17. The police are encouraged to videotape statements. I see no reason, with proper safeguards, to withhold the extension of the same encouragement to both strip and penile swab searches.

[147] In sum, I find that the Crown failed to prove the warrantless penile swab search of Mr. Johnson was done in a reasonable manner. Specifically, I find, on the evidence before me, the Crown failed to satisfy factors 7, 8 and 11 as explained above. Considering these failings together with all the evidence on the manner of the penile swab search, I find that the warrantless penile swab search of Mr. Johnson violated s. 8 of the Charter.

2. Was the police failure to give Mr. Johnson a reasonable opportunity to consult with counsel a violation of s. 10(b) of the Charter?

[148] The defence asserts that after Mr. Johnson was arrested at his Windsor home and given his rights to counsel, he invoked his right to call a lawyer but the police failed to give Mr. Johnson an opportunity to speak to counsel in violation of s. 10(b) of the Charter. This position can be subdivided into two aspects. First, the defence says Mr. Johnson specifically told the police he wanted to speak to Bob Boughner to get a lawyer. And second, if that is not factually supported, then the request to speak to Mr. Boughner, in this context, was the functional equivalent of invoking his s. 10(b) rights to counsel.[^2]

[149] The Crown says the accused did not tell the police he wanted to speak with Mr. Boughner to get a lawyer, thus Mr. Johnson did not invoke his s. 10(b) rights. The request to speak to Mr. Boughner did not impose on the police any obligation to give Mr. Johnson an opportunity to speak with counsel. Further, according to the Crown, asking to speak to a non-lawyer, Mr. Boughner, was insufficient to invoke s. 10(b) right to counsel.

A. Governing Principles

[150] Section 10(b) of the Charter¸ in pertinent part, provides: “Everyone has the right on arrest … to retain and instruct counsel without delay and to be informed of that right ….”

[151] This right places two duties on the police, commonly called the informational component and the implementational component. The former, the informational component, requires the police to advise the arrestee of his right to counsel. The second, the implementational component, requires the police to give the arrestee a reasonable opportunity to exercise his right to consult counsel without delay: see R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, at para. 21.

[152] These two duties stem from the purpose of s. 10(b) to allow a person under the control of the police to be informed of his rights and obligations and to obtain advice on how to exercise those rights: see Manninen, at para. 23. Then later, the purpose was explained more expansively to include advice on how to comply with certain legal obligations: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at para. 16. More recently, the Supreme Court explained the purpose of s. 10(b) as follows:

… to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Even more recently, its purpose is expressed as “to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation.”: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. at para. 24.

[153] Importantly, the implementational duty of the police to provide an opportunity to consult with counsel is not triggered unless the detainee invokes the right to counsel: see Bartle, at para. 18.

[154] Section 10(b) provides for the right to call a lawyer. There is no right to call a non-lawyer: see R. v. Adams (1989), 1989 CanLII 7161 (ON CA), 49 C.C.C.(3d) 100, at p. 108-9 (O.C.A.). However, if the detainee advises the police of his need to call a third party for the purpose of obtaining his counsel of choice, then a denial of this opportunity, may, depending on the circumstances, constitute a denial of a detainee’s s. 10(b) rights: see R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, 37 C.C.C.(3d) 565; R. v. Ellies, [2015] O.J. No. 4231, at paras. 53-57 (Ont. C.J.); R. v. Ferris [2014] S.J. No. 142, at paras. 27-31 (Sask. Prov. Ct.); R. v. O’Connor, [2013] S.J. No. 562, at paras. 42-45 (Sask. Q.B.); R. v. Menard, 2010 BCSC 1416, [2010] B.C..J. No. 1979, at paras. 45-46 & 62; and R. v. Pennell, 2013 ONCJ 664, [2013] O.J. No. 5496, at paras. 9-11. This question of whether a detainee invoked his right to counsel essentially is factual: see R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C.(3d) 1, at paras. 77-8.

B. Principles Applied

[155] As reviewed above, I find that on arrest Mr. Johnson was read his right to counsel. I find that Mr. Johnson asked to call Bob Boughner, his head coach and owner of the team. I find that Mr. Johnson wanted to speak with Mr. Boughner to get the name of the team’s lawyer. I find, however, that Mr. Johnson never communicated his purpose to the police. I find that Mr. Johnson said nothing about a lawyer nor did he verbally provide any reason for wanting to call Bob Boughner.

[156] Under all these circumstances, I find that Mr. Johnson has not met his burden to establish, on a balance of probabilities, that there was any violation of s. 10(b) for the police failure to give him an opportunity to call Bob Boughner at the station. I find that the words used by Mr. Johnson did not invoke his right to counsel, thereby engaging the police implementational duty. I find no s. 10(b) breach here.

3. Was the police failure to readvise Mr. Johnson of his right to counsel prior to the penile swab procedure a violation of s. 10(b) of the Charter?

[157] The defence argues that the police failed to give Mr. Johnson an additional opportunity to consult with counsel after deciding to conduct a penile swab search which violated his s. 10(b) rights pursuant to R. v. Sinclair.

[158] The Crown argues alternatively that 1) the police were entitled to suspend Mr. Johnson’s right to counsel pending completion of the penal swab search, citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, or 2) a penile swab search is not a “new procedure” under Sinclair, thus the police were not required to repeat the rights to counsel to Mr. Johnson. The s. 10(b) rights of Mr. Johnson were not violated.

A. Governing Principles

[159] Within the implementational duty discussed above, s. 10(b) also imposes on the police a “hold off” duty – “the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity” to consult with counsel: see Manninen, at para. 23. This “hold off” duty even extends to mandatory testing, like statutorily compelled breath tests: see R. v. Therens (1985), 1985 CanLII 29 (SCC), 18 C.C.C.(3d) 481, at p. 490-1 (S.C.C.). Indeed, “it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel ….”: see R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, [1989] S.C.J. No. 81, at para. 26.

[160] While in most cases, the police duties under s. 10(b) are fulfilled upon their initial compliance, in certain circumstances the police must give the detainee an additional opportunity to receive advice from counsel: see Sinclair, at para. 2. Three circumstances have been identified as triggering a reiteration of the right to counsel: 1) The police seek the detainee’s participation in a new, non-routine procedure; 2) There is a change in the jeopardy of the detainee; and 3) There is a reason to question the detainee’s understanding of the right to counsel: see Sinclair, at paras. 49-52. Because only the first is at issue here, only it will be discussed further.

[161] The Supreme Court explained new procedures as follows:

Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel in necessary: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3.

Sinclair, at para. 50.

[162] If the police seek to include a detainee in a new procedure, the police must again comply with the informational and implementational duties of s. 10(b). Failure to do so will constitute a breach of s. 10(b): see Sinclair, para. 57.

[163] Our court of appeal addressed the Sinclair issue in the context of a procedure quite similar to a penile swab, a general warrant compelling the accused to expose his anus to police officers by spreading his buttocks to make his anal area visible: see R. v. T.G.H., 2014 ONCA 460, [2014] O.J. No. 3129, at paras. 13-21. After first resolving the case without addressing the Sinclair issue, the court then addressed it as an alternative basis for its ruling. The court held this was a new procedure which “falls squarely within” Sinclair:

The examination authorized by the general warrant was about as far from a “routine procedure” as one could get. No one would suggest that the appellant’s lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice. It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality. The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance. The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant. In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant’s position, might well refuse to allow the police to do what the warrant authorized. Without proper legal advice, a detainee might well refuse to cooperate and find himself in further difficulty with the law.

T.G.H., at para. 40.

[164] In addition, two trial decisions, Pun and Amey, found penile swabs to be a new procedure under Sinclair which required renewed s. 10(b) rights.

[165] Alternatively, Bychok J. of the Nunavut Court of Justice in M.T., found the rule in Sinclair did not require the police to suspend their penile swab procedure nor to readvise the accused of his rights before said search, citing Debot: see M.T., at paras. 50-60. Debot, a 1989 Supreme Court decision, does hold “the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.”: see Debot, at para. 3. The penile swab decision in Harassmow also cited Debot as support for holding the officer was not required to delay the penile swab to allow the detainee to speak with counsel: see Harassmow, at paras. 61-65.

[166] However, our court of appeal addressed this Sinclair/Debot issue in T.G.H. The court noted that the Debot suspension was of the implementational duty, not the informational duty. The Ontario Court of Appeal agreed that the Supreme Court held that in some circumstances, including in a search incident to arrest in that case, the obligation to provide a detainee with an opportunity to speak with counsel may be suspended pending the search: see T.G.H., at paras. 30-32. The court then found that Debot did not apply in those circumstance, specifically, it did not apply to the execution of a general warrant for an anal exam, stating:

The rationale of Debot cannot, however, be transplanted into the very different circumstances that exist here. Debot was a case that involved a search as an incident of a lawful arrest. Obviously, there were very real practical difficulties with suspending that search pending consultation with counsel. Those difficulties do not exist here. There is no suggestion that the ability of the police to properly execute the warrant would have been hampered by both advising the appellant of his right to counsel and by giving him an opportunity to exercise that right prior to the execution of the warrant.

T.G.H., at para. 33.

B. Principles Applied

[167] Although the facts in T.G.H. and in our case are not identical, principally because of the nature of the search: one pursuant to a warrant and the other pursuant to the common law power of search incident to arrest, its conclusions are appropriately transferable.

[168] First, a penile swab search is a new, non-routine procedure, the type contemplated by Sinclair. Indeed, by their very intrusiveness, penile swab searches will never be routine. Moreover, even though a penile swab search is inherently compulsory, the purpose of s. 10(b) encompasses advice on those procedures for which a legal obligation attaches.

[169] I find that when the police decided to conduct a penile swab search on Mr. Johnson, the police had the duty to give Mr. Johnson an additional opportunity to receive advice from counsel. The failure to do so constituted a breach of s. 10(b) of the Charter. Further, I reject the Crown’s alternate argument that the police were entitled to suspend Mr. Johnson’s s. 10(b) rights pending completion of the penile swab search. I agree with T.G.H. that Debot does not control here. Debot was a street search case. Mr. Johnson’s penile swab search was conducted at the police station more than an hour after his arrest. The practical difficulties present at a street search are absent at a station search.

[170] I do not ignore the stated and accepted concerns of the police about intentional efforts to eliminate evidence in a penile swab context. This is why the arrested individual is handcuffed and placed in a dry cell. But, the facilities available here included a private telephone room with a window where an officer can monitor the conduct of the arrested person during his private lawyer call. With the availability of such a facility, I am of the opinion that a claim for the need to suspend such a telephone call is unwarranted. Finally, I note the accused was given a lawyer call before the swab procedure in Laporte, at para. 11.

[171] In summation, I find a breach of s. 10(b) of the Charter for the police failure to provide Mr. Johnson with an additional opportunity to consult with counsel upon deciding to conduct a penile swab search.

4. Does the violation of the Charter rights mandate the exclusion of the penile swab evidence?

A. Governing Principles

[172] Section 24(2) of the Charter provides for an exclusion remedy for Charter violations under certain circumstances. It states, in pertinent part, as follows:

Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[173] The question of whether the admission of evidence obtained by reason of a Charter breach would bring the administration of justice into disrepute calls for an assessment involving three inquiries: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the accused; and third, society’s interest in the adjudication of the case on its merits: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, at para. 71. A court faced with a s. 24(2) application for exclusion must assess and balance the effect of admitting said evidence on society’s confidence in the administration of justice having regard to these three avenues of inquiry: see Grant.

[174] The aim of s. 24(2) is both long term and prospective. This is an objective assessment of the long term, overall repute of the justice system. The inquiry asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: see Grant, at para. 68. Damage already has been done; there has been a breach of a Charter provision. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: see Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an accused but rather to protect the long-term repute of the justice system: see Grant, at para. 70.

1) Seriousness of the Charter-Infringing State Conduct

[175] “The main concern is to preserve public confidence in the rule of law and its processes”: see Grant, at para. 73. The court cannot be seen to condone violations of the law; the court must distance itself from that conduct: see Grant, at para. 72. Obviously, breaches, like all forms of conduct, are not uniform but vary in seriousness. Minor or inadvertent violations are at one end of the spectrum and those done intentionally or with reckless disregard of Charter rights fall at the other end: see Grant, at para. 73. Those at the serious end of the spectrum will have a negative effect on public confidence in the rule of law and “risk bringing the administration of justice into disrepute”: see Grant, at para. 73.

[176] There are factors that may attenuate or accentuate the seriousness of police conduct resulting in a breach. “Good faith” by the police officer may reduce the court’s need to dissociate itself from the breaching conduct: see Grant, at para. 75. However, ignorance of Charter law must not be rewarded and negligence can never be equated with good faith: see Grant. A pattern of abuse or a flagrant disregard of the Charter may require the court to dissociate itself from such conduct and tend to support exclusion: see Grant.

2) Impact on the Charter-Protected Interests of the Accused

[177] This inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: see Grant, at para. 76. This factor, too, has a range of seriousness from the trivial and technical to the profoundly intrusive: see Grant. The more serious the impact, the greater the risk is to the administration of justice if the results of the breach are admitted into evidence: see Grant.

[178] The seriousness of the infringement from this perspective requires an examination of the interests engaged by the particular right: see Grant, at para. 77. Regarding violations of s. 8, the impact is on protected privacy interests and human dignity: see Grant, at para. 78. Thus, for s. 8 breaches, the higher the expectation of the privacy that was invaded or the more demeaning the police conduct, the more serious the infringement: see Grant.

3) Society’s Interest in an Adjudication on the Merits

[179] There is an overall societal interest in deciding criminal cases on their merits: see Grant, at para. 79. The reliability of the evidence sought to be excluded is a factor here because its exclusion may “render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: see Grant, at para. 81. “Reliability issues with physical evidence will not generally be related to the Charter breach. Therefore, this consideration tends to weigh in favour of admission”: see Grant, at para. 115. The importance of the evidence to the prosecution’s case also is a factor that may be considered: see Grant, at para. 83. The seriousness of the underlying offence, however, if considered at all, must be considered very carefully because it can impact both ways. The inability to prosecute a serious charge because of the exclusion of evidence may impact how the public currently views the justice system. However, the court, in this context, is concerned with the long term impact of maintaining a system of law above reproach, which is particularly challenging in serious cases: see Grant, at para. 84.

4) Balancing the Factors

[180] In assessing the effect of admission of the evidence on the repute of the administration of justice, the court must consider all three lines of inquiry. In so doing, the court must determine, on balance, whether the admission of the evidence derived from a Charter breach would bring the administration of justice into disrepute: see Grant, at para. 85. “No overarching rule governs how the balance is to be struck”: see Grant. Each case must be considered on its own facts. “The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision”: see R. v. Harrison, 2009 SCC 34, 245 C.C.C. (3d) 86, [2009] S.C.J. No. 34, at para. 36 (S.C.C.).

B. Principles Applied

[181] There are two Charter breaches to consider. One is the contravention of s. 8 of the Charter and the other is the contravention of s. 10(b) of the Charter.

[182] The s. 8 breach was for the manner in which the penile swab search was conducted. The breach centered on three factors: the lack of appropriate privacy by having an open door and a video camera with no known access restrictions; the complete disrobing of Mr. Johnson; and the lack of a proper record.

[183] The s. 10(b) breach was for the failure of the police to implement anew the rights to counsel upon the decision to conduct a penile swab search.

1) The First Inquiry: Seriousness of the Charter-Infringing State Conduct

[184] The first inquiry concerns the seriousness of the Charter-infringing state conduct. Like all conduct, breaches are not uniform and vary in seriousness. At one end are minor and inadvertent mistakes. At the other end are intentional or reckless violations. Those at the serious end of the spectrum tend to negatively affect public confidence in the rule of law and risk bringing the administration of justice into disrepute.

[185] In this case, the Charter-infringing conduct was serious.

[186] With regard to the s. 8 violations, the violations concern factors present for strip searches since the Golden decision in 2001. The penile swab procedure may be new but it is simply a more intrusive form of strip search. Thus, the requirements for a validly conducted penile search necessarily include all those from Golden plus more. Yet here, it was the Golden factors which were ignored.

[187] The officer conducting the penile swab procedure, Cst. Jones, had no formal training on penile swabs nor did he consult with any other officer about the process or procedure. He said he had done one or two prior penile swab procedures. His attitude was workmanlike – he was just collecting evidence. He was polite. He was efficient. But he seem oblivious to his legal obligations. He did not consider the open door because, according to him, he never remembered when the search room door was closed. There was a brick wall on the other side of the hallway and no one walked by, so he saw no problem. He did not consider the sequence of the procedure which left Mr. Johnson completely naked. Cst. Jones simply started with the collection of all the clothes of Mr. Johnson first. To Cst. Jones, the nudity during the penile swab procedure “just happened.” When asked whether there were any legal limitations to a strip search or a penile swab, Cst. Jones responded, “Search incident to arrest includes collection of his clothing and swabs, so that’s exactly what I did.”

[188] This indifference to the limitations on his police power and to the legal requirements designed to afford law enforcement with evidence while insisting on the related protection of privacy interests, is of great concern to me. On the one hand Cst. Jones was polite and focused on his evidence collection; he was productive. On the other hand, he seemed oblivious to the seriousness of the procedure he was conducting. Indeed, he seemed unconcerned. His indifference to the open door, the video camera, Mr. Johnson’s nudity, his note taking, all failed to match the high infringement of personal dignity and privacy being undertaken by the officer. Simply put, a penile swab search is not normal evidence collection and the police must not approach it in such a fashion.

[189] The s. 8 breach was serious.

[190] With regard to the s. 10(b) breach, Cst. Jones reasoning for not giving Mr. Johnson access to counsel before his penile swab search was a fear of the loss of evidence. He did not want the accused to be alone, unmonitored, in a room talking to his lawyer. He never was asked about the detention unit’s windowed telephone room which would allow monitoring. When pressed, he said that’s the way we always to it, search before any lawyer call. He did not point to any training, policy, or legal precedent to support his position. He never indicated he even heard of Sinclair. For Cst. Jones it was all about evidence collection.

[191] The seriousness of this breach must be tempered with the fact that the law in this area was only recently settled. Sinclair is a 2010 Supreme Court decision and the issue of whether a penile swab search is a “new procedure” was not firmly resolved in Ontario until the T.G.H. decision in 2014, after the search here. Moreover, the Debot decision on the suspension of the right to counsel pending the search, in a context very similar to this case, also was not decided until T.G.H. in 2014.

[192] Accordingly, and in spite of Cst. Jones’ rigidity without reason, the s. 10(b) breach, standing alone, is a less serious breach.

[193] However, in considering both breaches together, they are collectively on the serious end.

[194] The first inquiry favours exclusion.

2) The Second Inquiry: Impact on the Charter-Protected Interests of the Accused

[195] This inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: see Grant, at para. 76. The court is to consider the interests protected and examine the degree to which the violation impacted those interests. This factor, too, has a range of seriousness from the trivial and technical to the profoundly intrusive: see Grant. The more serious the impact, the greater the risk is to the administration of justice if the results of the breach are admitted into evidence: see Grant.

[196] In this case, the impact of the breaches on the Charter-protected interests of Mr. Johnson was great.

[197] Section 8 is designed to protect privacy interests. Its core purpose is to protect individuals from unjustified state intrusions. Here Mr. Johnson was stripped naked and compelled to swab his own penis before a camera and two strangers. Here too the procedure undertaken was constitutionally flawed. It is difficult to imagine a greater infringement on the personal dignity and privacy of anyone and especially of an 18 year old young man. The Supreme Court in Golden found that a strip search is inherently humiliating and degrading. The impact of a penile swab procedure is greater than that of a simple strip search. It is a strip search plus a touching of one’s genitals.

[198] With regard to the s. 10(b) breach, the purpose of this right includes the right to obtain legal advice on how to comply with legal obligations. Here, the denial of this right did impact Mr. Johnson’s interests but this conclusion must be tempered with the knowledge that giving Mr. Johnson a telephone call would not have changed the outcome. The police had a right to take a penile swab and no lawyer call would change that. I note that this is not a case in which the accused, being denied a right to call counsel, then made incriminating statements. Thus, with regard to the s. 10(b) breach alone, its impact on Mr. Johnson’s interests was not great.

[199] However, the impact of the s. 8 breach on Mr. Johnson’s privacy interests was great.

[200] The second inquiry favours exclusion.

3) The Third Inquiry: Society’s Interest in Adjudication of the Merits

[201] There is an overall societal interest in deciding criminal cases on their merits: see Grant, at para. 79. The reliability of the evidence sought to be excluded is a factor here because its exclusion may “render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: see Grant, at para. 81. There is little doubt that the penile swab evidence is relevant and reliable.

[202] The importance of the evidence to the prosecution’s case also is a factor that may be considered. Here it is important as support for the evidence of the complainant but it is not essential. The absence of the evidence will not end the case.

[203] The third inquiry favours the admission of the evidence.

4) Balancing

[204] The court must consider all three lines of inquiry. The court must determine, on balance, whether the admission of the evidence derived from a Charter breach or breaches would bring the administration of justice into disrepute: see Grant, at para. 85. No single rule governs. The balance is qualitative and not capable of mathematical precision: Harrison, at para. 36.

[205] Here there is a serious Charter breach with a strong negative impact on Charter interests. Penile swab searches involve serious invasions of privacy certainly ranking at the top of the privacy interests of humans. The police are given the power to take this type of evidence without prior judicial approval but this power must be exercised only after a greater degree of justification and only with increased constraints on the manner of the search itself. The police did not conduct the penile swab search in this case in a reasonable manner. They breached Mr. Johnson’s right to privacy in a serious way.

[206] I have assessed and balanced the effect of admitting the penile swab evidence on society’s confidence in the administration of justice having regard to the three avenues of inquiry reviewed above. I approached this assessment with a long term prospective. I looked at it objectively. I do not seek to punish the police or reward Mr. Johnson. I seek only to protect the long-term repute of the justice system.

[207] On balance, I find the admission of the penile swab evidence would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

CONCLUSION

[208] For the reasons above, I find as follows:

1. A warrantless, non-consensual penile swab may be taken lawfully pursuant to the common law police power to search incident to arrest but only after a greater degree of justification and only with increased constraints on the manner of the search.
2. The warrantless, non-consensual taking of a penile swab from Mr. Johnson here violated s. 8 of the Charter.
3. The police failure to give Mr. Johnson a reasonable opportunity to consult with counsel did not violate s. 10(b) of the Charter.
4. The police failure to readvise Mr. Johnson of his right to counsel prior to the penile swab procedure violated s. 10(b) of the Charter.
5. The admission of the penile swab evidence would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

[209] Accordingly, the penile swab evidence is hereby excluded from this trial.

Original signed “Munroe J.”

Kirk W. Munroe

Justice

Delivered Orally: June 15, 2016

CITATION: R. v. Johnson, 2015 ONSC 3947

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BENJAMIN JOHN JOHNSON

Defendant

RULING ON EXCLUSION MOTION

Munroe J.

Delivered Orally: June 15, 2016

[^1]: I stress that this is from the evidence of Cst. Jones who did not claim to be an expert on DNA degradation. No expert was called on this matter.

[^2]: The defence also raised, with less vigour, the claim that the police failed to sufficiently inform Mr. Johnson of the nature of his jeopardy thereby violating s. 10(b). I disagree and reject this claim. On arrest, Cst. Danby advised Mr. Johnson he was under arrest for sexual assault. This satisfied the duty to advise Mr. Johnson of the reason for his arrest. It was sufficient to inform Mr. Johnson of the nature of his jeopardy.