CITATION: R. v. McEwan, 2017 ONSC 6055

COURT FILE NO.: 13893/15

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Eric McEwan

Applicant

J. Bruce, for the Crown

A. Dresser, for the Applicant

HEARD: July 14, 15, 26 & August 3, 2017

REASONS FOR DECISION from trial including application by accused pursuant to Sections 8, 9 AND 24(2) of the CHARTER

WOODLEY, J.:

OVERVIEW

[1] The Applicant, Eric McEwan (“McEwan”), was charged with: (i) trafficking a controlled substance, namely heroin; (ii) possession for the purpose of trafficking a controlled substance, namely crack cocaine; and (iii) possession of marijuana.

[2] At the commencement of the trial, counts (i) and (iii) were withdrawn. The trial proceeded by way of a blended voir dire only with respect to count (ii) possession for the purpose of trafficking a controlled substance, namely crack cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[3] McEwan was arrested on July 30, 2014 and underwent a strip search incident to arrest on July 31, 2014 at the police station in Oshawa. The crack cocaine was discovered during the strip search.

[4] McEwan brought an application pursuant to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”) alleging that the Durham Regional Police lacked reasonable grounds to arrest him and further that the strip search of his person following his arrest was unlawful and constituted a fundamental breach of his Charter rights.

[5] McEwan seeks an Order that the evidence seized from his person during the strip search be excluded pursuant to s. 24(2) of the Charter as a result of the violation of his ss. 8 and 9 Charter rights.

ISSES

[6] The issues to be determined are as follows:

(a) Did the Durham Regional Police lack reasonable grounds to arrest McEwan resulting in a breach of his s. 9 Charter rights?

(b) Was the strip search of McEwan’s person following his arrest unlawful resulting in a breach of his s. 8 Charter rights?

(c) Should the evidence seized from McEwan’s person during the strip search be excluded pursuant to s. 24(2) of the Charter as a result of any breach of McEwan’s s. 8 and/or s. 9 Charter rights?

DETERMINATION OF ISSUES

[7] The issues are hereby determined as follows:

(a) The Durham Regional Police lacked reasonable grounds to arrest McEwan resulting in a breach of his s. 9 Charter rights;

(b) The strip search of McEwan’s person following his arrest was unlawful resulting in a breach of his s. 8 Charter rights; and

(c) The evidence seized from McEwan’s person during the strip search is excluded pursuant to s. 24(2) of the Charter as a result of the breach of McEwan’s ss. 8 and 9 Charter rights.

ISSUE ONE: THE LAWFULNESS OF THE ARREST– SECTION 9 of the CHARTER

McEwan’s Position Regarding Section 9 of the Charter

[8] McEwan submits that there is insufficient information that would lead a reasonable person in the position of the police to conclude that reasonable grounds existed for his arrest.

[9] More particularly McEwan asserts:

(a) the CI information lacks sufficient reasonable grounds to believe that McEwan is the suspect known as “Bongo”; and

(b) the officers’ surveillance notes and testimony lack sufficient reasonable grounds to believe that Bongo or McEwan was found committing any specific criminal offense.

The Law and Analysis: Section 9 of the Charter

[10] McEwan was arrested by PC Green on July 30, 2014, without a warrant.

[11] Section 495(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, provides that a peace officer may arrest without a warrant,

(a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; or

(b) A person whom he finds committing a criminal offence.

[12] An arresting officer requires both subjective and objective grounds on which to base an arrest. Absent these grounds the arrest will be in violation of the individual’s s. 9 Charter right to be free from arbitrary detention.

[13] The subjective and objective grounds are as follows:

(a) The police must believe that reasonable grounds exist and the grounds must relate directly to the offence for which the accused is being arrested: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 52, at para. 15; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.), at p. 249; R. v. Janvier, 2007 SKCA 147, 54 C.R. (6th) 253, at paras. 42-44; and

(b) The belief must be based on information that would lead a reasonable person in the position of the police to conclude that reasonable grounds existed for the arrest: Storrey, at pp. 250-51; R. v. Stevenson, 2014 ONCA 842, 328 O.A.C. 132, at para. 50, leave to appeal to S.C.C. refused, 36281 (May 21, 2015).

[14] The standard for the belief is reasonable grounds, reasonable suspicion is not sufficient.

[15] Where police form grounds to arrest an individual based on information obtained from a confidential informant, the reviewing court must consider whether the tip was compelling, whether the source was credible, and whether the information was corroborated. These factors must be considered in the totality of the circumstances when assessing the reasonableness of the arrest, and weaknesses in one area may, to some extent, be compensated by strengths in the other two: R. v. Debot, [1989] S.C.R. 1140 (S.C.C.), at p. 1168.

[16] The burden is on McEwan to rebut the presumption that the warrantless arrest was lawful. As noted, McEwan seeks to rebut the presumption on the basis that the CI information and the officers’ surveillance notes and testimony lacked sufficient reasonable grounds on which to base the arrest.

(a) Review of the CI Information

[17] To determine if the CI information can properly form part of the reasonable grounds it is necessary to review the information with reference to the Debot factors: 1) was the information compelling?; 2) was the source credible?; and 3) was the information corroborated?

Was the Information Compelling?

[18] PC Aiello, testified that he was able to identify McEwan as Bongo while he (Aiello) was driving by McEwan’s vehicle and simultaneously calling out McEwan’s license plate number, as Aiello had seen a mug shot of McEwan one month prior.

[19] I have great concern with the manner in which this identification purportedly occurred. However, assuming the identification was made in the manner suggested, for Aiello to identify McEwan as Bongo, Aiello was required to disregard the CI information that “Bongo” did not drive (as McEwan was driving at the moment of identification).

[20] As such, only two scenarios are logically possible:

(a) If McEwan is Bongo and Bongo can or does drive, the CI information is not compelling and is generally unreliable; or

(b) If the CI information is compelling and Bongo can or does drive, Bongo is not McEwan.

[21] Although the officers are entitled to disregard unreliable information, there is no evidence that the specific information that Bongo did not drive is unreliable. In fact this evidence that Bongo did not drive is the most descriptive information provided by the CI. The remaining CI information is neither descriptive nor detailed. Bongo is not identified in any meaningful way.

[22] The CI information does not provide any description of Bongo’s physical characteristics, any indication of his age, or the manner in which he traffics illegal drugs. The only information provided by the CI that would link McEwan to Bongo is as follows:

(a) Bongo and McEwan are both black males; and

(b) Bongo was known to “bounce” between 212 Athol Street and 20 Drew Street (along an 8km strip of Dundas Street East in Oshawa); McEwan was observed near 136 ½ Simcoe Street South, which is approximately 1.5 km from 20 Drew Street.

[23] These two facts—taken as sole reasonable grounds—suggest that any black male in the vicinity of downtown Oshawa could be Bongo, without further corroborative evidence.

[24] The car is connected to McEwan, but not Bongo. The specific information provided by the CI was that Bongo does not drive. This information alone specifically negates a finding that Bongo is McEwan.

[25] The police are not entitled to pay attention only to that which incriminates the accused. The police must consider the exculpatory evidence too. The exculpatory evidence does not appear to have been considered in the present case.

Was the Source Credible?

[26] There exists little evidence about the CI. We are aware that the CI was paid for the information and had a criminal record, but not one related to dishonesty or fraud. The CI’s relationship with Baldini (the handler) and Aiello was not lengthy.

[27] In the circumstances there is no basis to conclude that the CI source was credible.

Was the Information Corroborated?

[28] The evidence of all officers was clear on this point—no attempts were made to corroborate the CI information.

[29] Absolutely no investigative tools were utilized, no searches conducted, and no surveillance undertaken to corroborate the CI information relating to Bongo.

Review of the Totality of the Debot Factors in the Present Case

[30] There is no evidence or information that would lead me to believe that the CI information was compelling, that the source was credible, or that the information was corroborated. Little if any balancing of the factors needs to be undertaken.

[31] In the present case, based upon the CI information, the police may have had reasonable suspicion but reasonable suspicion does not equate with reasonable grounds and cannot sustain a lawful arrest.

(b) Review of the Officers’ Surveillance Notes and Testimony

[32] The surveillance notes and testimony relate to the date upon which, the police assert, they formed reasonable grounds to arrest McEwan, being July 23, 2014.

[33] On this date, July 23, 2014, the officers involved in the arrest were carrying out targeted surveillance of a specific location in connection with an ongoing police investigation.

[34] The records of the police investigation do not connect McEwan—whether he is or is not Bongo—to a specific criminal offence or to the specific location targeted.

[35] On July 23, 2014, the investigation and surveillance was targeting the trafficking of prescription drugs at 136 ½ Simcoe Street South, Oshawa. There was no information that would connect McEwan or Bongo to this address.

[36] Further, the nature of the investigation—prescription drug trafficking at a specified location—does not corroborate any potential drug trafficking by Bongo, who was an alleged crack cocaine or heroin dealer not alleged to deal in prescription drugs and not known to frequent the specific address.

[37] None of the officers involved in the July 23, 2014 investigation and surveillance, revealed on record or through testimony that they witnessed any recorded hand-to-hand drug deals.

[38] In this case, there is no “pattern of conduct” consistent with drug transactions to consider—there was one brief event, during which no criminal offence was witnessed.

[39] However, reasonable belief may exist between the officers’ training and experience. The officers’ recorded observations of that evening, and the finding of heroin on a third party Angelica Helpard, who was being surveilled at 136 ½ Simcoe Street, and who briefly entered McEwan’s vehicle on July 23, 2014, suggest the interaction between Helpard and McEwan could be inferred as a hand-to-hand drug deal.

[40] All officers testified that the circumstances suggested a hand-to-hand drug deal took place behind the black Infiniti’s tinted windows.

[41] The police officers’ testimony is that based on their training and experience, reasonable and probable grounds existed to believe that a drug deal occurred in the black Infiniti that evening. Helpard wanted drugs. She went to 136 ½ Simcoe Street—a location being actively investigated for drug related activity. She requested drugs. Helpard entered then exited the passenger’s side of a stranger’s vehicle in a parking lot during a brief time period, and was later found with the drugs she sought.

[42] The officers’ experience is relevant to the objective test, but reasonable belief cannot rest solely on this or else it effectively removes the objective test entirely. Jurisprudence has accepted other similarly suspicious facts as contributing to the objective requirement for reasonable grounds. See R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 88, 118, and 187.

[43] In the present case, there is insufficient evidence to establish that reasonable grounds existed on July 23, 2014 to arrest McEwan. Lacking any additional evidence or affidavit from Helpard confirming her narrative from that evening:

(a) Anything could have occurred in the Infiniti; and

(b) The source of the heroin could have been anyone, anywhere.

[44] The police should have taken steps to corroborate the CI information or the information received from the internal source. They should have utilized any number of investigative techniques available to them, but they did not. No steps were taken to engage in further surveillance, investigation, or corroboration of any of the information received.

[45] According to R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, where reasonable grounds for arrest do not exist, the arrest was unlawful and violates s. 9 of the Charter.

[46] The grounds for McEwan's arrest arose from reasonable suspicion. Reasonable suspicion does not equate to reasonable and probable grounds for arrest. The arrest of McEwan, in the particular circumstances of this case, was unlawful and a breach of McEwan’s s. 9 Charter rights.

ISSUE 2: THE LAWFULNESS OF THE STRIP SEARCH – SECTION 8 of the CHARTER

McEwan’s Position Regarding Section 8 of the Charter

[47] McEwan asserts:

(a) That if his arrest is deemed unlawful, any subsequent search is also unlawful;

(b) That insufficient reasons existed to conduct the strip search; and

(c) The manner in which the strip search was conducted was unlawful.

The Law and Analysis: Section 8 of the Charter

[48] The general rule is that warrantless searches are presumptively unreasonable under s. 8 of the Charter. However, the general rule does not apply to searches incident to arrest which are an established exception to the general rule: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84.

[49] Searches incident to a lawful arrest are presumptively lawful: R. v. Caslake, [1988] 1 S.C.R. 51 (S.C.C.), at p. 61; and Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 (S.C.C.), at p. 186.

[50] Strip searches incident to arrest, however, cannot be justified on the arrest grounds alone, something more is required: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 136-38; R. v. Muller, 2014 ONCA 780, 122 O.R. 3(d) 721, at para. 59; Golden, at paras. 98-99.

[51] Even where a strip search qualifies as incidental to arrest, police must establish that they have reasonable and probable grounds for concluding a strip search is necessary in the specific circumstances of the arrest, and those grounds justifying the strip search must be established in addition to the reasonable and probable grounds justifying the arrest: Golden, at paras. 98-99.

[52] The Supreme Court of Canada in Golden held that a warrantless strip search incidental to arrest will be constitutionally permissible if the search satisfies the following:

• conducted incident to a lawful arrest;

• conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

• based on additional reasonable and probable grounds, beyond those of the arrest, for concluding that a strip search is necessary in the particular circumstances of the arrest. Further, “whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”; and

• conducted in a reasonable manner consistent with s. 8.

(a) Review of the Sufficiency of the Grounds to Conduct the Strip Search

[53] I am satisfied that the strip search qualifies as a search incident to arrest because the purpose for the arrest is consistent with the purpose for the strip search. McEwan was arrested for trafficking narcotics, or more accurately, possession of narcotics for the purpose of trafficking. The purpose of the strip search relates to that purpose: McEwan was strip searched for the purpose of locating narcotics concealed on his person.

[54] I have already found that the warrantless arrest was unlawful. However, even if the arrest was lawful, the strip search was a significant breach of McEwan’s s. 8 rights. To ensure a fulsome review, I will proceed to consider the remaining steps of the Golden test.

[55] With respect to the sufficiency of the grounds for the strip search, PC Green cited the following grounds to justify McEwan’s search: (1) the nature of the offence was drug trafficking, (2) in his experience, drug traffickers often try to hide evidence in places on their person that elude a “pat-down” search, and (3) McEwan was fidgeting with his pants after his hands were handcuffed over his rear.

[56] The more intrusive the search, the greater degree of justification needed to comply with s. 8: Golden, at paras. 87-88 and 98; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, 67 O.R. (2d) 63 (S.C.C.), at p. 517.

[57] The Crown bears the burden of rebutting the presumptive unreasonableness of the strip search and to do so it must demonstrate additional reasonable and probable grounds justifying the strip search beyond the reasonable grounds that form the basis of the arrest.

[58] The reason for requiring additional reasonable grounds in excess of those forming the basis for the arrest is that “a strip search is a much more intrusive search than a “frisk” search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity”: Golden, at para. 98.

[59] On the basis of McEwan’s fidgeting, Green suspected he had narcotics hidden on his person. Green advised the transport officer that he wanted to ride in the back of the vehicle with McEwan in order to prevent McEwan from fidgeting with his boxers any further.

[60] The requirement that officers have reasonable and probable grounds before conducting a strip search has both a subjective and objective component: R. v. Johnson, 2016 ONSC 3947, 359 C.R.R. (2d) 112, at para. 126.

[61] Green must have believed that he had reasonable and probable grounds for believing that the search would produce evidence relating to the charge (subjective), and Green’s belief must be based on objectively discernible facts that would lead a reasonable person in the shoes of that officer to also conclude that McEwan probably had evidence hidden on his person (objective).

[62] Mere possibility is not enough: Gonzales, at para. 139; Golden, at para. 94. The officer’s training and experience is relevant to the court’s assessment of the objective grounds, but must not be “accepted uncritically”: R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 64.

[63] Green met the subjective requirement based on his testimony at trial.

[64] Regarding the objective requirement, the question is whether a reasonable person in Green’s circumstances—with his training and experience and upon witnessing McEwan’s fidgeting—could reasonably conclude that McEwan probably had evidence hidden on his person and that it was necessary to conduct a warrantless strip search to secure that evidence in the circumstances of the arrest.

[65] Golden instructs that this step of the test is satisfied only if there are additional reasonable and probable grounds in excess of the reasonable grounds justifying the predicate arrest. There must be a constellation of objectively discernable facts to support those additional grounds.

[66] In the present case, reasonable grounds for the arrest did not exist. Even if the arrest were lawful, the only ground provided by Green to justify the strip search was that McEwan was fidgeting with his rear while cuffed in the police car on the way to the police station. Recall that the officers’ grounds for arrest arose one week prior to the actual arrest. In my view, the fidgeting, taken together with the circumstances of the arrest, does not demonstrate any more than a mere possibility that McEwan was concealing evidence on his person. Insufficient evidence was presented to demonstrate that it was necessary to conduct the warrantless strip search in the circumstances of the arrest. Insufficient grounds existed to justify the strip search and the Crown has not met its burden in this regard.

(b) Review of the Manner in which the Strip Search was Conducted

[67] Golden sets out guidelines to provide a "framework for police in deciding how best to conduct a strip-search incident to arrest in compliance with the Charter.”

[68] The framework asks a series of 11 questions which need to be asked and answered to determine whether the manner in which the strip search was conducted was reasonable.

[69] The Golden criteria are meant to list a selection of best practices for police. They are not a conjunctive test, so failure of one criteria does not translate into a Charter breach.

[70] In the present case, the series of 11 Golden questions are asked and answered as follows:

Q1: Was the strip search conducted at the police station and, if not, why not?

A1: Yes. The strip search was conducted at the 17 division central cell block.

Q2: Was the strip search conducted in a manner that ensures the health and safety of all involved?

A2: There is no evidence to suggest that McEwan’s health or safety was in jeopardy.

Q3: Was the strip search authorized by a police officer acting in a supervisory capacity?

A3: Yes. Green’s notes from July 31, 2014 confirm that the strip search was authorized by Acting Sergeant Easton. Green provided grounds for and requested a strip search from Acting Sergeant Easton, who granted the request.

Q4: Was it ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

A4: Yes. The search was conducted by two male officers, Green and Baldini.

Q5: Was the number of police officers involved in the search no more than is reasonably necessary in the circumstances?

A5: While there were two officers in the room itself, various officers came and went in the adjacent hallway. PC Mariott interacted with the situation to provide paper towel.

Q6: Was the minimum of force necessary used to conduct the strip search?

A6: Yes. First, when Green noticed the white string hanging from McEwan’s buttocks, he asked McEwan to remove it with his right arm. He then pinned McEwan’s left arm, based on his experience that at this stage of searches, arrestees sometimes become combative and try to further conceal evidence. McEwan took hold of the string, clenched his buttocks, and pulled the string quickly, breaking the string off while the bag it was connected to remained in McEwan’s rectal cavity. The officers considered this an attempt to conceal evidence and acted immediately to prevent further concealment. Baldini took control of McEwan’s right arm, while Green maintained control of his left. McEwan then stood with both arms under police control, with Baldini and Green each holding one limb. After discussion the officers released McEwan and did not take further steps to physically confine him.

Q7: Was the strip search carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

A7: Not necessarily. PC Mariott was not an “individual engaged in the search,” but based on a review of the video footage of the cell block provided by the Durham Regional Police Service (“DRPS”) as compared to Green’s testimony at the trial there is a chance that Mariott witnessed McEwan naked inside the cell for a short period of time.

Q8: Was the strip search conducted as quickly as possible and in a way that ensured that the person is not completely undressed at any one time?

A8: No. After reviewing the video footage of the cell block provided by the DRPS and comparing it to Green’s testimony at the trial, I conclude that McEwan was completely undressed for approximately 15 minutes.

Green offered two “points of reference” for determining the beginning and end of McEwan’s period of full nudity. The first point of reference, marking the beginning of the period of nudity, is Baldini’s tossing of McEwan’s shoes out of the cell occurring at approximately 12:22:23 a.m. The second point of reference he provided, marking the end of the period of nudity, is Baldini exiting the room to get cleaning supplies at approximately 12:36:48 a.m. However, during cross-examination, Green changed his testimony. He confirmed McEwan’s state of nudity twice: (1) Green said that, at approximately 12:37:00 a.m., McEwan was likely still completely nude; (2) Green then said McEwan was also likely still completely nude at approximately 12:37:55 a.m., and that, around this time, McEwan would have started getting dressed again. I conclude that McEwan was fully nude from 12:22:23 a.m. until either 12:36:48 a.m., 12:37:00 a.m., or 12:37:55 a.m. Thus, total time spent fully nude was between 14min 25s to 15min 32s.

Those subject to strip searches should not be fully naked at any point. Green could not offer a reasonable explanation for why McEwan was fully naked for so long. In fact, until counsel corrected him, he thought McEwan had been naked for no more than a few minutes. Green did not explain to McEwan that he was not to be fully naked at any point during the search. Green could not explain why he did not offer McEwan’s T-shirt to him after he established the existence of a package in his anal cavity. Green conceded that it would have been possible to have McEwan wear his T-shirt and lift the hem, but he maintained that passing back the T-shirt would have aided McEwan in concealing the evidence further. Defence counsel asked why further concealing of evidence was a risk. Green replied that, in his experience, he had seen arrestees remove packages from their anus and swallow it. But Green went on to concede that he could have returned the T-shirt, allowed McEwan to put it on, and then resumed physical control of McEwan to prevent him from removing and swallowing the package. As to why he elected not to do this, he replied only that his focus shifted to “retrieving the drugs,” away from considering giving McEwan back his T-shirt.

Q9: Did the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?

A9: Yes. There is no evidence to suggest that either Green or Baldini ever made physical contact with McEwan’s genital or anal regions.

Q10: If the visual inspection reveals the presence of evidence in a body cavity (not including the mouth), was the detainee given the option of removing the object himself or of having the object removed by a trained medical professional?

A10: Yes. McEwan was given the choice to remove it himself or be held for 72 hours in a dry cell.

Q11: Was a proper record kept of the reasons for and the manner in which the strip search was conducted?

A11: On balance, I am satisfied that the record was adequate, if only just. Some important details are captured, but others, like duration spent fully naked, are absent.

[71] The strip search complied with guidelines 1, 2, 3, 4, 5, 6, 9, 10, 11. The search was conducted at a police station. It protected the health and safety of those involved. It was properly authorized and conducted by officers of the same gender as the arrestee. The number of officers carrying out the strip search was reasonable. A minimum of force was used. The officers did not make physical contact with the arrestee’s genital areas. McEwan was given the option to remove the evidence from his body cavity, and he did so. That said, the search failed criteria 7 and 8.

[72] In Golden, the court held that “although the search involves the removal of all clothing, it should be done in such a way that the person is never completely undressed and should be conducted as quickly as possible.”

[73] In R. v. A. (Z.), 2012 ONCJ 541, 266 C.R.R. (2d) 152, at para. 31, a strip search was held unreasonable for, among other Charter breaches, the period of complete nakedness:

Although Z.A. removed his clothing item by item to be searched, the clothing was not immediately returned to him. At the end of the search, Z.A. was completely naked. It is contrary to police policy for a detained person in these circumstances, whether an adult or, as in this case, a young person, to be stripped completely naked. No reason was given why Z.A. was reduced to this condition.

[74] In R. v. McPhail, 2011 ONCJ 315, 239 C.R.R. (2d) 355, at para. 38, a strip search conducted where the defendant was fully naked and could be viewed by the officers, was held to violate s. 8, and constitute a serious impact, pulling towards exclusion of the evidence in the Grant analysis.

[75] Not only was McEwan completely undressed, but the period of total nakedness was excessive. McEwan was fully naked for approximately 15 minutes. The officers conducting the search offered no reasonable explanation why no article of clothing was returned to McEwan.

[76] Additionally, McEwan performed an embarrassing sequence of acts while fully exposed which included defecating on a paper towel and cleaning up his own feces while fully naked.

[77] At trial, Green described McEwan as “non-combative” and a quiet and shy young man: “his whole demeanor, I would say, shy during the entire duration, and it didn’t really change during the search…the entire conversation was very quiet…he was the same way throughout from the time we arrested him…” After having defecated on the floor, he apologized to the officers and offered to clean it up. Accommodating. Shy. Meek. Compliant. Non-combative. Uncomplaining. Apologetic.

[78] If Golden directs us to minimize the suffering and trauma of strip searches, the officers, having witnessed McEwan’s shyness, ought to have taken steps to minimize his humiliation.

[79] The officers did not take sufficient steps to protect McEwan’s dignity and privacy, which had already been infringed as an inevitable consequence of the strip search. I find that the excesses (which brought the search into contravention of criteria 7 and 8) are not saved by having satisfied the other factors. The search violated criteria 7 and 8 because McEwan was subjected to a “drawn-out exposure to indignity.”

[80] Strip searches are presumptively unreasonable. In the present case the Crown failed to rebut this presumption by demonstrating on a balance of probabilities that reasonable and probable grounds existed for the strip search and that the strip search was conducted in a reasonable manner at the police station.

ISSUE 3: SHOULD THE EVIDENCE BE EXCLUDED? SECTION 24(2) CHARTER

[81] As reformulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, to decide if evidence tainted by a Charter infringement should be excluded under s. 24(2) of the Charter, the court considers the following three factors:

• The seriousness of the Charter-infringing state conduct;

• The impact of the breach on the Charter-protected interest of the accused; and

• Society's interest in the adjudication of the case on its merits.

[82] It is not a three-prong test where all three criteria or a majority of them need be satisfied. Rather, it is a balancing exercise where the key question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would do harm to the long-term repute of the administration of justice.

[83] Importantly, the objective of s. 24(2) is not to rectify police misconduct, but rather to preserve public confidence in the law. Evidence need not be a “shock” to the community, nor the “clearest of case”: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 292; R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 52.

The Seriousness of the Charter-Infringing State Conduct

[84] Under Grant’s first stage, the officers' arrest conduct, while not carried out in bad faith, was rushed and perhaps reckless. The officers acted on a hunch, and ignored a crucial detail of their CI’s tip instead of investigating further to corroborate it. The officers equally could have waited for a warrant. There appears on the record to be no good reason for the officers to have rushed to make a warrantless arrest in this case. In doing so, they ignored McEwan’s Charter rights.

[85] Alone, this may be characterized as a minor error in judgment. However, combined with the ensuing strip search, the arrest demonstrates a pattern of abuse and a serious infringement of McEwan’s Charter rights.

[86] The strip search was a very serious breach of McEwan’s s. 8 rights. The manner in which the strip search was conducted was unreasonable as per Golden. In the circumstances, the officers failed to take reasonable steps to minimize the humiliation and degradation suffered by McEwan.

[87] The time that McEwan spent fully naked was not proportional to the evidentiary purpose of the search. There is no reason why McEwan ought not to have had his shirt returned to him after a visual examination of his buttocks, and there was no reason why he ought to have defecated while fully nude. It is entirely inexcusable that McEwan was left entirely nude while he cleaned up the feces in front of two fully clothed officers while the door was ajar and officers milled about and joked just outside the door.

[88] It was particularly troubling that the officers in charge of the search demonstrated very poor recollection of the unreasonable aspects of the search, namely the duration that McEwan was fully naked. Officers estimated that McEwan was fully naked for no more than a few minutes, when in reality it was closer to 15 minutes. It was also particularly troubling that the officers testified that they had received no specific training on strip searches, but rather, picked it up on the job and by observing other officers.

The Impact of the Breach on the Charter-Protected Interest of the Accused

[89] The impact of the breach on McEwan’s Charter rights was severe. Strip searches are one of the most humiliating, intrusive types of searches that police can conduct. While police may conduct strip searches as incident to arrest, they must only do so if the search was necessary in the circumstances and steps were taken to minimize the degree of intrusion. The manner of the search saw McEwan being made to suffer a prolonged period of indignity, aggravated by the duration of his period of nudity and the fact that he was required to defecate, on the floor, while fully naked and remained naked until he had personally cleaned up the feces from the floor.

Society's Interest in the Adjudication of the Case on its Merits.

[90] McEwan did not admit to possession on the record and was compelled to give incriminating evidence. The admission of the evidence will affect trial fairness, particularly as the evidence is the only reliable, credible evidence proving an offense was committed, and its reveal was caused by police.

[91] Although not committed in bad faith, the nature and circumstances of the Charter violations were serious, deliberate and flagrant. The officers had time to conduct further investigation, seek legal advice as to the lawfulness of their arrest, make any other alternative efforts to minimize potential intrusion on McEwan’s rights, and ensure they had identified the correct suspect, who would otherwise have had no reason to flee or elude an investigation of which he was unaware. The police took no such action.

[92] The effect of the evidence’s exclusion on the long-term repute of the administration of justice, in this case, does not act as a counterbalance in favour of admission. Although the evidence is clearly reliable and credible, the manner in which it was discovered—namely, through an unreasonable strip search—greatly offends the principles of natural justice and brings the integrity of the legal system into disrepute.

[93] This third stage of the inquiry asks “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion.” While this stage of the inquiry may pull towards inclusion of the evidence, the long-term consequences of admitting evidence obtained in this fashion, as a result of a string or cascade of violations militates toward exclusion. Courts must be careful not to allow evidence discovered post-arrest to retroactively justify rushed police work that was based on suspicion, not evidence that has only yielded real evidence through flagrant breaches of Charter rights. If the evidence were admitted, it would serve only to tarnish, not promote public confidence in the justice system.

[94] Central to the reputation of the administration of justice is the public’s confidence that the courts will protect the individual’s constitutional rights from state intrusions. One of the only means available to the court to distance itself from serious police misconduct is the exclusion of the fruits of that misconduct under s. 24(2) of the Charter.

[95] Strip searches are one of the most intrusive searches and one of the most extraordinary police powers. Abuses of such a power ought to be reprimanded in the strongest terms. The prospect of conviction in exchange for doing serious harm to the long-term repute of the administration of justice is not a bargain the court in this instance is willing to accept.

[96] For the reasons set out herein, the evidence is excluded as a breach of McEwan’s ss. 8 and 9 Charter rights.

[97] In the absence of any evidence to prove the charge against McEwan, the charge which has been continued against McEwan is hereby dismissed.

Justice S. J. Woodley

Released: October 13, 2017

CITATION: R. v. McEwan, 2017 ONSC 6055

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Eric McEwan

Applicant

REASONS FOR JUDGMENT

Madam Justice S.J. Woodley

Released: October 13, 2017