R. v. McCann, 2017 ONSC 884

CITATION: R. v. LYNDSIE McCANN, 2017 ONSC 884

COURT FILE NO.: 15-540

DATE: 2017/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Frances Brennan, for the Crown

• and -

LYNDSIE MICHELLE GERDINA MCCANN

Brigitte Gratl, for the accused

HEARD: September 21-22, 2016

LEACH J.

Overview and preliminary matters

[1] By way of overview, the accused, Lyndsie McCann, is charged with one offence pursuant to the Controlled Drugs and Substances Act, (“the CDSA”), and two offences pursuant to the Criminal Code of Canada, (“the Code”). The offences are particularized in the indictment, but generally involve:

• one count of possessing Methamphetamine (a Schedule 1 substance) for the purpose of trafficking, contrary to s.5(2) of the CDSA;
• one count of possessing a prohibited weapon, (a Yaqua blow gun), without holding a licence authorizing its possession, contrary to s.91(2) of the Code; and
• one count of possessing a prohibited weapon, (a flick knife), without holding a licence authorizing its possession, contrary to s.91(2) of the Code.

[2] The charges stem from police execution of a CDSA search warrant, on August 7, 2014, in relation to a property known by its municipal address as 78 Cobourg Street, Stratford, (hereinafter referred to alternatively as “the residence” or “the apartment”), where Ms McCann was living at the time.

[3] Evidence relating to what transpired during and after execution of that warrant is outlined in greater detail below. In broad terms, however:

• during the course of the warrant’s execution, the accused was placed under arrest;
• a subsequent search of the accused’s person, performed outside the residence before transportation of the accused in a police cruiser, disclosed that the accused had two packets of Methamphetamine, (respectively containing 18.5g and 14.4g of that narcotic), hidden in the area of her brassiere, along with some Canadian currency;
• a further search of the accused’s person at the Stratford police station revealed no additional contraband; and
• a search of the residence nevertheless resulted in location of additional items that included a blow gun, a knife capable of being opened with centrifugal force, (commonly described as a “flick knife”), and an expandable baton.

[4] By way of an appropriate formal application brought and heard before trial, the accused asserts that, during the course of her arrest and conduct of the relevant searches, there were violations of her rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms, (the “Charter”). The former guarantees the right of the accused “to life, liberty and security of the person”, and “not to be deprived thereof except in accordance with the principles of fundamental justice”. The latter guarantees the right of the accused “to be secure against unreasonable search or seizure”.

[5] In that regard, the accused says, in particular:

• that the overall manner of the search warrant’s execution was inappropriate and unreasonable;
• that excessive and inappropriate force was used while she was being placed under arrest, (which included forceful and humiliating touching of her breasts by one or more male police officers during and after her arrest);
• that she was subjected to an improper and humiliating strip search by a female police officer outside of her residence; and
• that she was subjected to a further improper and humiliating strip search by the same female police officer after being taken to the police station.

[6] The accused therefore formally asks, in her notice of application, that “evidence obtained as a result of the Charter violations be excluded from the trial, pursuant to s.24(2) of the Charter”.

[7] While the notice of application does not specify the particular evidence the accused seeks to exclude, defence counsel indicated during the course of the application’s hearing that the accused’s exclusion request is not limited to the narcotics found on the accused’s person. The request also extends to other evidence found by the police in the residence, including the weapons underlying Counts 2 and 3 of the indictment.

[8] In response, the Crown says the arrest of the accused and searches leading to discovery of the aforesaid drugs and items were lawful, carried out in a reasonable manner, and fully Charter compliant. In the alternative, the Crown says admitting such evidence would not bring the administration of justice into disrepute, so as warrant exclusion of the evidence pursuant to s.24(2) of the Charter.

Evidence – General Comments

[9] The Crown has the overall onus at trial to establish the guilt of an accused beyond a reasonable doubt, in relation to alleged offences.

[10] However, it is settled law that, in relation to Charter applications such as the one before me, an accused generally has the onus of proving, on a balance of probabilities, that there have been constitutional infringements and that evidence obtained as the result of any infringement should be excluded. See R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 35.[^1]

[11] Notwithstanding that onus, the parties to this application were content to proceed, by agreement, with the Crown leading evidence first, followed by evidence led by the defendant.

[12] In particular, the Crown presented testimony from three witnesses, all of whom were officers with the Stratford Police Service:

i. Constable Kyle Clarke, a member of the Stratford Police “Emergency Response Unit” (ERU), who participated in entering and securing the residence at the start of the relevant warrant’s execution. Constable Clarke also was the officer primarily responsible for taking physical charge of Ms McCann and placing her under arrest. At the time of the hearing before me, Constable Clarke was in his 15th year of working with the Stratford Police Service.

ii. Sergeant James Robert Taylor, another member of the ERU, who also participated in entering and securing the residence at the start of the relevant warrant’s execution. Sergeant Taylor was the senior officer present in the residence at the time of the accused’s detention and arrest. (Although a Detective Constable at the time of the warrant’s execution, and not yet officially promoted to the rank of Sergeant, notice of his expected formal promotion already may have been posted, he was senior to the other ERU officers based on years of experience, and “second in command” of the ERU in any event.) Sergeant Taylor has worked with the Stratford Police Service since December of 2001.

iii. Constable Natasha Grabowski, who was serving as a uniformed officer at all material times. In particular, at the time of the relevant warrant’s execution, Constable Grabowski initially waited with her police cruiser near and then outside the residence while the ERU entered and secured the building. The accused, after being placed under arrest, was led outside to Constable Grabowski, who searched the accused before transporting the accused to the police station. After arriving at the police station, Constable Grabowski searched the accused again before placing the accused in a holding cell. At the time of the hearing before me, Constable Grabowski had been working with the Stratford Police service for ten years.

[13] In addition to subjecting the Crown’s witnesses to cross-examination, the defence called the accused as a witness to testify on her own behalf concerning matters underlying the application.

Evidence – General Facts

[14] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence presented during hearing of the application.

[15] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings concerning the events of August 7, 2014, form the basic context of my further analysis:

• In 2014, Sergeant Taylor was a member of the “Street Crimes Unit” (SCU) of the Stratford Police Service. As he described it, the primary role of the SCU was “to get drug traffickers and drug users off the streets”, and gather related intelligence for that purpose.
• By August 7, 2014, Sergeant Taylor and the SCU had obtained information that the accused, Lyndsie McCann, was trafficking in crystal methamphetamine from a residence described by its municipal address as Unit 3, 78 Cobourg Street, in the city of Stratford. The unit was an upstairs apartment, located in a house situated on the north side of the street, and known to be the residence of the accused. At that point, Sergeant Taylor had known Ms McCann for a number of years, and knew her to be involved in the drug culture of Stratford.
• On August 7, 2014, at 3:50pm, using an “information to obtain” or “ITO” affidavit sworn by Sergeant Taylor, the Stratford Police obtained a warrant from a Justice of the Peace authorizing a search of the residence between the hours of 4pm and 9pm that day. The warrant, (not challenged or questioned in the accused’s application material), documented a finding that there were reasonable grounds to believe that the residence contained methamphetamine, precursors to methamphetamine, things in which methamphetamine might be contained or concealed, and/or other things or items of property that might afford evidence of offences pursuant to subsections 5(2) and 4(1) of the CDSA; i.e., trafficking in methamphetamine, and possession of methamphetamine. The police were authorized to search for and seize such items. The warrant did not address whether or not the police were required to “knock” or otherwise announce their presence and purpose before entering the residence. Orders prohibiting disclosure of the warrant and information to obtain the warrant also were granted.
• Sergeant Taylor then spoke with an Inspector to secure authorization for deployment of the ERU. Such approval is required as an additional means of ensuring that the criteria for ERU deployment are satisfied, and because there is a significant financial cost associated with calling in all the additional officers required for a proper and effective ERU deployment.
• A short time later, that same afternoon, Constable Clarke and other members of the ERU were instructed to attend at the police station. (Constable Clarke, for example, arrived at the station at approximately 3:47pm.) Soon after that, from approximately 5:00pm to 5:10pm, there was an assembly and briefing of ERU officers, (at least six and probably 8-10 in number), who would be participating in contemplated execution of the warrant, and who already had changed into their ERU dress. In that regard:
  • The ERU is a unit of the Stratford Police Service, with approximately 10 members. It participates in police activities involving levels of risk “beyond normal”, or “higher risk”, including certain calls and search warrant executions giving rise to safety concerns. Criteria determining involvement of the ERU in execution of a search warrant include the nature of the warrant, the number of occupants who may be in the premises to be searched, the history of targets the police are looking to arrest, and indications of possible weapons. Given the relatively small size of the Stratford Police Service, members of the ERU do not work exclusively in that unit, but are called upon to play many police roles during the course of their service.
  • The decision to involve the ERU in execution of this particular warrant was based on a number of considerations. In particular, the purpose of the warrant was to search for drugs and related evidence capable of being destroyed easily if those inside a residence are given any advance indications of intended police entry. (Constable Clarke, for example, testified that he had personal experience of that having happened in the past.) Moreover, based on information received from trusted confidential informants, (the disclosure of which was not requested by the accused), and direct police observations, (through surveillance conducted in relation to the residence and other officer experience), in this particular situation there were indications of heightened risk which including the following:
    • As noted above, the police had information indicating that the residence, occupied by Ms McCann, was being used to traffic crystal methamphetamine, a very dangerous drug which makes the behaviour of those using it highly unpredictable and potentially violent.
    • Although Ms McCann had no criminal record at the time, more than one proven and reliable confidential informant had indicated to Sergeant Taylor that Ms McCann herself was a user of drugs and methamphetamine in particular, making her behaviour highly unpredictable.
    • Sergeant Taylor himself previously had seen Ms McCann acting in a manner consistent with his training and substantial experience with individuals under the influence of methamphetamine.
    • The residence was known to be a drug “flop house”, where multiple individuals would go to purchase and use drugs, such that the exact number of persons inside the residence at any given time would be unknown.[^2]
    • Confidential informants and surveillance of the residence indicated that at least two males, (Mike Killian and Dan Turner), known to be involved in the drug subculture, also would be present in the residence with Ms McCann at the time of the warrant’s execution.
    • The police had information indicating the possibility of weapons inside the residence, as the accused was known to possess and carry weapons such as an expandable baton. (Such indications were supported by photographs of the accused carrying weapons, although that had never been observed directly by the police.) Confidential informant information, “street check” records and other police databases also indicated that several other individuals seen frequenting the residence had criminal records, were part of the drug culture, were prone to violence, and/or were known to carry weapons. Moreover, Sergeant Taylor himself previously had arrested someone leaving the residence who was carrying a weapon.
    • There accordingly was thought to be, at the least, a risk of harm to police officers executing the warrant.
  • The purpose of the ERU briefing was discussion of an operational plan in relation to execution of the warrant, including a “mission statement” for the day, how members of the ERU would approach the residence, how individuals would be secured and turned over to uniformed officers, and how the residence would be turned over to investigators who then would be called in. In broad terms, the intended role of the ERU in this particular operation was to safely secure all occupants inside the residence, and turn them over to other officers for searching, before turning the residence over to members of the SCU to search for evidence. (It is not the usual practice of ERU officers to immediately conduct a search of persons secured and/or arrested before their prompt removal from the premises to be searched. That task is left to the officers waiting outside the premises, who receive such individuals from members of the ERU.)
  • Members of the ERU assembled for the briefing included Sergeant Taylor and Constable Clarke.
• During the briefing, members of the ERU participating in the operation were informed that the nature of the warrant being executed focused on drugs, and were shown the original search warrant. They also were provided with additional information, which included the following:
  • There was discussion about the location and nature of the property to be entered and searched; i.e., a house that had been divided into at least three apartment sub-units, with the residence of the accused located to the left at the top of a short staircase leading to the right from the front door of the house. The front door of the house was known to be kept unlocked, whereas the door to the accused’s residence had a double lock mechanism, and the expectation was that it would have to be breached.
  • The ERU officers were briefed about the possibility of weapons in the residence, (although that was said to be a belief rather than a certainty). They also were told that the behavior of Ms McCann was unpredictable, and that persons with a history of violence were known to attend the residence.
  • The ERU officers were told the residence was occupied by a number of individuals. They were briefed on specific persons known to the police who might be in the residence, and about persons who would be “arrestable”. In particular, they were specifically instructed to apprehend the accused, who was the focus of the operation, (and a person whom Constable Clarke knew as the result of previously seeing Ms McCann on earlier occasions, such as traffic stops). The officers participating in execution of the search warrant also were informed of a male who might be in the residence, in the company of Ms McCann.
  • For reasons of safety, only ERU members would enter the house and participate in measures to clear and secure the residence, including the contemplated arrest of the accused. At the time of the warrant’s execution, there were no female members of the ERU. However, members of the ERU team participating in the operation were told that a female officer would be attending at the property outside the house to search the accused, once the ERU had secured the residence and its occupants.
• At or about the same time as the ERU briefing, Constable Grabowski was asked, (after arriving at the Stratford police station to start her shift at 5pm), to be in the area of 78 Cobourg Street while the ERU acted on a drug-related search warrant, in case any females were taken into custody. (Constable Grabowski had assisted the ERU with a few similar warrant executions in the past, and was familiar with the process of ERU officers turning persons over to uniform officers to conduct pat down searches, on every such occasion, before then transporting such persons to the police station.) Constable Grabowski proceeded alone in her cruiser to the relevant area at approximately 5:16 to 5:19pm, and waited down the street from the residence.
• A short time later, the briefed ERU members then attended at 78 Cobourg Street, (located only a couple of blocks from the police station), wearing black trousers, black long-sleeved shirts, black “load bearing” vests with the word “POLICE” across the chest and back, (as well as shoulder flashings marked “Stratford Police”), black gloves, black helmets, and black balaclavas generally covering the faces of the officers apart from the area around their eyes and nose. (The balaclavas are worn for purposes of officer safety. For example, they prevent possible facial injuries if ERU officers are required to deploy “distraction devices” such as “flash bang grenades”, which may have a particularly incendiary effect if used in the presence of chemicals such as those found in illicit drug processing operations; a risk encountered during the course of executing drug-related search warrants. The balaclavas nevertheless also prevent possible recognition and identification of participating ERU officers by unknown persons inside the residence, and the associated possibility of adverse reactions or other negative consequences such as the compromising of undercover operations in which members of the ERU pose as purchasers of illicit drugs in Stratford and the surrounding area.) Given the fear of bodily harm, and to protect themselves and each other if weapons were in the residence and someone tried to use those weapons, the ERU members also were armed with rifles on slings.
• Also attending at or near the residence, during the course of the operation, were at least two detectives in “plain clothes”, (with badges and holstered side arms, in an unmarked vehicle), and two or more “road officers”, (including Constable Grabowski), in full uniform and armed, with marked police cruisers.
• At approximately 5:19pm on August 7, 2014, ERU members entered the unlocked and open front door of the house, ascended the stairs quickly and quietly in a line or “stack”, and breached the locked door of the accused’s apartment using a three-foot metal “breaching ram”. It should be noted and emphasized that I effectively received no evidence one way or the other as to whether the police attempted to knock, and thereby seek a possible voluntary opening of the apartment door by someone inside, before the door was breached. In that regard:
  • Constable Clarke candidly indicated that he was third in the stack of officers ascending the stairs, that he could not say whether an attempt was made to knock on the door, and that he similarly could not say with certainty whether or not the door was locked, (although he assumed the door must have been locked if it was breached).
  • Sergeant Taylor testified that he was at the rear of the stack of officers entering the apartment, and similarly could not say whether or not a knock was made on the apartment door before entry. (Indeed, because of his position in the stack, he felt unable to say with certainty whether the apartment door was even breached.)
  • Constable Grabowski was not present when the ERU entered the apartment, and accordingly could offer no evidence in that regard.
  • The accused testified that she was in her bedroom speaking with Mr Killian when the ERU entered the apartment door, (located outside of the accused’s bedroom and down a hall). She was not asked about whether she heard an earlier knock, and may not have been in a position to hear a knock in any event, had one been made.
  • In my view, the fact that the police quietly entered the house and ascended the stairs is equally consistent with an intention to knock on the apartment door, (without first alerting anyone on the other side of the apartment door to the fact it was a team of police officers waiting outside), as well as an intention to breach the door without knocking, (so as to give no advance notice of entry).
  • In the result, I am unable to find that the police knocked on the apartment door, but similarly am unable to find that the police failed to knock on the apartment door before it was breached.
• Immediately after the door was breached, the ERU officers quickly filed into the apartment. As they entered and proceeded into the residence, each member of the ERU repeatedly yelled the words “Stratford Police, search warrant!” to identify themselves and their reason for entering.
• Immediately beyond the apartment entrance was a hallway with a number of doors leading into different rooms.
• Constable Clarke was the second or third ERU member to enter the apartment. Within a second or so, he followed the officer immediately before him, (Constable Weyers), a few feet down the hallway and through a doorway on the left; a doorway which led into the bedroom of the accused. The room had two windows along its south wall, (opposite the doorway), and was large enough to accommodate, at the least, a large bed, (in an alcove to the left of the doorway, in the southeast corner of the room), a number of dressers, (one against the south wall between the windows and another somewhere to the west), and at least five to six people. It nevertheless also was “incredibly cluttered”.
• Once inside the bedroom, Constable Weyers immediately took charge of a male named Mike Killian, bringing him to the floor to the right of the bedroom doorway, in an area towards the southwest corner of the room. When Constable Clarke entered the bedroom, he initially did not participate in taking charge of Mr Killian, but instead proceeded immediately to the accused, whom he saw and recognized to the left, kneeling and screaming on top of the bed, facing Constable Clarke and the bedroom door.
• As he approached the accused, Constable Clarke said “You’re under arrest”, and instructed the accused to get “down on the ground”, “face down” onto her stomach. Using the rifle sling to put the weapon to his side, Constable Clarke then reached out with an open hand to grab the accused’s arm and gain control, with a normal grip that was not that hard or squeezing. Constable Clarke gave his instructions with a view to completing the arrest and securing the accused; i.e., by taking control of the accused, securing her hands behind her back in handcuffs, and placing her in a position making it more difficult to run away or take other action. However, Constable Clarke also helped the accused comply with his instructions by escorting her off the bed and down onto the carpeted floor, over the course of a few seconds, in a non-violent manner, while maintaining hold of her arm. Once the accused was on the floor, Constable Clarke put the accused’s hands behind her, to the middle of her lower back, and secured them together with plastic “flex cuffs”. In particular, he did so by successively taking hold of each wrist of the accused, and inserting each of her hands through the openings of the flex cuffs before the device was tightened sufficiently to prevent the accused’s hands from slipping out. The entire physical process of placing Ms McCann under arrest, (from Constable Clarke taking hold of her arm to Ms McCann being face down on the floor with her hands cuffed behind her back), took approximately 30-45 seconds. In particular, she was placed in handcuffs within one minute of the ERU breaching the door and entering the apartment.
• After completing the arrest of Ms McCann, Constable Clarke remained within arm’s reach of her while turning, standing and repositioning himself in an effort to observe both Ms McCann and the continuing struggle between Constable Weyers and Mr Killian. In particular, at that point Mr Killian had been put on the floor and his hands cuffed, but he was still “fidgeting” and apparently trying to reach behind him into his rear pants pocket to obtain a cellphone and what appeared to be a notebook. Constable Clarke therefore was paying attention to that ongoing struggle, in order to ensure that “nothing more came of that”. He nevertheless was not required to assist physically in relation to Mr Killian.
• After Ms McCann and Mr Killian had both been arrested, Constable Clarke and Constable Weyers remained in the bedroom with their respective charges for approximately five minutes more while the remainder of the apartment was being “cleared” by the other ERU members, and while other individuals found in the apartment were being taken downstairs and outside to other waiting police officers to be “dealt with” and transported to police headquarters. During the course of that wait:
  • Ms McCann remained face down on the floor for approximately one minute before Constable Clarke assisted in moving Ms McCann upward into a standing position. Standing to the left of Ms McCann, he did so by reaching down and taking hold of her left arm with two hands simultaneously, (with one of his hands placed underneath Ms McCann’s arm on the inside of her left tricep and the other placed in the area of her left elbow), before then raising and holding her sufficiently so that she was able to get her feet underneath her and stand. Ms McCann did not struggle during that process, and no difficulty was encountered in bringing her to a standing position.
  • While Ms McCann was being raised to a standing position, it nevertheless became apparent that her full left breast had come out of her brassiere and shirt top; i.e., a solid, sleeveless “tank top” shirt, made of unknown cloth, with two single strand “spaghetti straps”, (almost like string), going over the shoulder to hold up the shirt so that it stays on. The shirt top also was low cut, so as to expose “lots of cleavage”, (as Sergeant Taylor later described it). The left side of that shirt top, and of the brassiere Ms McCann wore underneath it, apparently had both been pushed down further; e.g., by friction with the carpeted floor during the course of Ms McCann coming off the bed and moving forward onto her stomach, and/or by friction with the carpeted floor during the course of Ms McCann being raised to her feet As a result, not only was Ms McCann’s left breast exposed, but in observing what had taken place, Constable Clarke could see a piece of plastic, apparently part of a plastic “baggie”, sticking out oddly from Ms McCann’s brassiere in the vicinity of Ms McCann’s left breast.[^3]
  • With no female officers in the apartment, and presented with a situation he wanted to address quickly and carefully, (to avoid any allegation of mistreatment), Constable Clarke immediately called for Sergeant Taylor, (whom he knew to be somewhere in the apartment), as a more senior officer.
  • In fact, Sergeant Taylor already had reached the entrance of the bedroom in time to see Constable Clarke assist in raising Ms McCann from the floor. (On entering the apartment, Sergeant Taylor had gone immediately to the right, to the doorway of the apartment’s living room, where he had observed another officer take charge of Dan Turner, who was being co-operative, in the presence of a barking Boxer dog that also required attention. However, after hearing yelling and a call for “support” from the nearby bedroom, Sergeant Taylor turned and went to that room immediately. By the time he got there, another member of the ERU team, Constable Serf, already had entered the bedroom to assist Constable Weyers in efforts to subdue Mr Killian, who was on the ground but still agitated, yelling and screaming. Constable Clarke was to the left of the bedroom door, with the accused in a prone position, before Sergeant Taylor saw Ms McCann being raised to a standing position, without difficulty. At that point, Sergeant Taylor independently observed that Ms McCann’s breast had become exposed.)
  • Sergeant Taylor therefore was able to respond almost immediately to the situation involving Ms McCann’s exposed breast and Constable Clarke’s call for assistance. He did so by taking hold of the accused’s shirt, in order to quickly manipulate the shirt up and over the exposed breast to cover it again. In particular, after conversation indicating his intentions to ensure Ms McCann was comfortable with and understood what he was about to do, (i.e., fix Ms McCann’s shirt and cover her exposed breast before she was led outside in handcuffs), Sergeant Taylor briefly and easily was able, by taking hold of the spaghetti straps with his two hands, to pull the shirt top downwards, out, up and back over the left breast of the accused, (without touching or rearranging Ms McCann’s brassiere, without touching the breast itself, and without touching Ms McCann’s skin), so that both breasts were once again “seated” in Ms McCann’s shirt. The accused said nothing during the course of that procedure, but appeared grateful and expressed her thanks once it was done.
  • In the result, Ms McCann’s full breast was exposed for a very brief time, measured in seconds and less than a minute.
  • During that time, Constable Clarke took no action to address or remove the plastic item he had noticed in the area of Ms McCann’s left breast. That was a conscious decision on his part, as he felt any search of Ms McCann’s person should be carried out by a female officer as contemplated, (in order to avoid any unnecessary discomfort to Ms McCann), and because the confined and crowded area of the bedroom, otherwise filled with males, generally was not conducive to a proper and effective search of the accused’s person for any objects or items.
• After the aforesaid adjustment of her clothing, the accused remained in the bedroom for a few more minutes, under the charge of Constable Clarke but with others in the room, (including Sergeant Taylor, who stayed after being called in to assist).
• At or about the same time, (at approximately 5:23pm), Constable Grabowski received a call asking her to come to the residence, as a female had been placed under arrest and taken into custody. Constable Grabowski arrived at the location “a couple of minutes” later, (by which time a number of police vehicles already had arrived in front of the residence), and parked her marked police cruiser on the north side of Cobourg street, (i.e., on the same side of the street as the residence), approximately five car lengths east of the residence. Constable Grabowski then exited her vehicle, and began walking along the sidewalk toward the relevant house.
• Constable Clarke, after receiving an indication “they were ready to receive Ms McCann outside”, held on to the accused by placing his hand on her upper arm, and escorted her downstairs, out the main door of the house, and along the sidewalk towards Constable Grabowski and her police cruiser. The accused did not struggle, and Constable Clarke was not required to exert any significant force while directing her.
• Constable Grabowski met Constable Clarke and Ms McCann as they were walking towards her along the sidewalk, and the three then proceeded together back to Constable Grabowski’s cruiser, where Constable Clarke turned Ms McCann over to the female officer. In the result, the accused was presented to Constable Grabowski, (who never entered the residence), within 5-7 minutes of being arrested.
• As he was presenting the accused to Constable Grabowski, Constable Clarke signaled, by a motion drawing a cupped hand horizontally back and forth across his own chest, but without saying anything, that Constable Grabowski should “pay attention to” and “maybe check” the chest area of the accused. Constable Grabowski saw the gesture, and understood it to mean that Ms McCann had something in her chest region.
• At that point, Constable Grabowski, (who already knew the accused from previous police calls, and was aware of the accused’s involvement in Stratford’s drug culture), took physical control of the accused by using her right hand to take hold of the accused’s upper arm, “not very tightly at all”, between the shoulder and the elbow. Constable Grabowski understood, from the information received before arrival at the location, that Ms McCann already had been placed under arrest.
• On being presented to Constable Grabowski, Ms McCann said nothing to raise any concerns about her treatment by police to that point, and Constable Grabowski saw no injuries or marks on the accused.
• Constable Grabowski then positioned the accused near the rear passenger door of the police cruiser, (near the sidewalk), and turned the accused towards the vehicle. While standing right beside Ms McCann, Constable Grabowski then advised the accused of her intention to conduct a “pat down search”, by which Constable Grabowski meant an initial search to “check the outer layers of the body” of a person, for any evidence or weapons, by “patting down their clothes, checking in the waist band, checking along their chest area and in their hair”. In her testimony, Constable Grabowski emphasized that her particular intention was to check Ms McCann for evidence or weapons before Ms McCann was placed in her cruiser.
• Before conducting that intended pat down search, Constable Grabowski nevertheless asked the accused if she “had anything on her” that Constable Grabowski might find. Posing that question was a standard procedure employed by Constable Grabowski for reasons of safety, (in case there was something on a person that might harm the person or the officer in the course of the search), and to provide the person with an opportunity to be forthcoming. In this case, the accused responded “No, I do not”.
• Constable Grabowski then indicated that she would be proceeding with the pat down search, and did so. In particular:
  • Constable Grabowski began by checking the accused’s waist area, side and left pocket.
  • As per the standard practice she employed for pat down searches of females, Constable Grabowski then checked Ms McCann’s upper region by sliding the back of her open hand across the accused’s chest area. In doing so, Constable Grabowski initially felt what she described as an “object”, “bump”, “obstruction” or “something there” when checking the upper rib area of the accused’s left side. Without having to remove any of Ms McCann’s clothing, or exposing any of Ms McCann’s skin, Constable Grabowski was then able to reach in between the accused’s skin and clothing, and easily pull out a small clear baggie that had been located right inside a cup of the accused’s brassiere, to the left side of the accused’s left breast. It took Constable Grabowski no more than a couple of seconds to remove the baggie, which appeared to contain methamphetamine, (based on Constable Grabowski’s experience in dealing with that narcotic). Constable Grabowski placed the baggie in her left pants pocket before continuing the search.
  • In using the back of her hand to continue patting along the accused’s breast area, over the accused’s clothing, Constable Grabowski then felt another object underneath the accused’s left breast. Without exposing any skin, Constable Grabowski reached inside the accused’s clothing and brassiere, albeit not very far, and in a couple of seconds, was easily able to pull out “another clear dime bag”, that was “right there”, containing more of the substance Constable Grabowski believed to be methamphetamine. The officer placed that baggie in her pants pocket as well, before continuing the search.
  • After completing her pat down of the accused’s left side, Constable Grabowski then proceeded to search the accused’s right side in a similar fashion; e.g., using the back of her hand to pat along the area of the accused’s right breast, over Ms McCann’s clothing. In doing so, Constable Grabowski felt another object on the right side of the accused’s right breast. In the officer’s words, “it just felt like there was something there”. Without exposing any skin, Constable Grabowski once again reached in, underneath the accused’s clothing, and easily retrieved what turned out to be money, (i.e., currency in the form of several bills, folded twice into a quarter of a normal bill’s dimensions), loosely tucked inside the accused’s brassiere. The money was not “stuck” to Ms McCann, and Constable Grabowski was not required to “dig” for it. Retrieving the currency from inside Ms McCann’s clothing once again took no more than a couple of seconds.
  • After finding that money, Constable Grabowski continued her search along the right side of the accused’s body, checking the accused’s pockets, and down the legs, patting along the outside of the accused’s clothing. Nothing further was detected, and Constable Grabowski accordingly did not reach under the accused’s clothing again.
  • Throughout the search, Ms McCann generally remaining facing the police cruiser, being turned only slightly when Constable Grabowski had to check particular areas of Ms McCann’s person.
  • Constable Grabowski emphasized that she removed the aforesaid items because she considered them to be evidence and for safety reasons; e.g., to prevent any attempt by Ms McCann to consume the drugs while she was in the police cruiser.
• During the course of the aforesaid search, (which took only a few minutes), and until Ms McCann was then placed into the rear of Constable Grabowski’s police cruiser, Constable Clarke remained nearby, standing beside and to the rear of Constable Grabowski. Once inside the cruiser, Ms McCann received the standard recitation of her rights and a caution from Constable Grabowski, before being transported to the Stratford Police Station.
• Once Ms McCann was taken to the police station, she was placed in a “search room”, where Constable Grabowski conducted a “strip search”, (which Constable Grabowski understood to mean a search whereby, in contrast to the earlier pat down search, articles of clothing would be removed to permit a visual inspection of Ms McCann’s body). In that regard:
  • Constable Grabowski did not indicate or suggest in any way that her decision to conduct such a strip search in relation to the accused was a matter of standard policy or approach, or that she always or routinely carried out such searches. To the contrary, she explained that the purpose of the particular intended strip search of the accused was to determine if Ms McCann had any additional evidence on her person that had not been detected by the earlier pat down search. In the officer’s view, a strip search to determine whether the accused had any other hidden contraband seemed particularly advisable in the circumstances, as the items discovered during the earlier pat down search already had confirmed that Ms McCann had lied to Constable Grabowski about not having anything on her person.
  • The relevant search room was a small room with four walls, a desk, a chair and a telephone. The single door to the room had a small rectangular window at its top right side. The room also was equipped with cameras, which were operational and recording during execution of the search.
  • Constable Grabowski conducted the strip search of Ms McCann in accordance with the standard protocol for such searches followed by the Stratford police. In particular:
    • The strip search was conducted by a single officer, of the same gender as the person to be searched, with the officer and the searched person being alone in the search room.
    • The door to the search room was kept closed during the search, to protect the subject’s privacy.
    • The accused was asked to go up against the wall at the end of the room, to the right of the door and out of the view through the small door window, to ensure more privacy and so that the accused would not feel as exposed in the middle of the room.
    • The accused was asked to face that wall, and remove the first layer of clothing on her upper body, (i.e., Ms McCann’s “tank top” shirt), which was then handed to Constable Grabowski. The officer then checked that shirt for objects, visually examined the areas of Ms McCann’s body exposed by removal of the shirt, (without physical contact), to see if there were any items on the accused’s person, and placed the shirt on the desk. The same procedure was then repeated in relation to the accused’s brassiere. Once both items of clothing and the accused’s upper body had been visually checked for items, with nothing further being found, the brassiere and tank top were returned to Ms McCann, who was asked to put them both back on, which she did.
    • Only then did Constable Grabowski proceed with a similar procedure in relation to the clothing on the lower portion of Ms McCann’s body. In particular, the accused was asked to remove her pants and turn them over to Constable Grabowski, (who inspected the pants, and then did a visual inspection, without touching, of the accused’s lower body areas revealed by removal of the pants), before the same procedure was adopted in relation to any underwear worn by the accused, (although Constable Grabowski candidly indicated she could not recall with certainty whether the accused was wearing underwear that day, whether the accused was asked to remove a tampon, or whether the accused then asked for a pad). That inspection of Ms McCann’s lower body clothing, and visual inspection of Ms McCann’s lower body, (which included a request for Ms McCann to bend and cough, to permit a visual check of the accused’s vaginal area), also revealed no further items or contraband. The garments from Ms McCann’s lower body then were returned to the accused, who was asked to put them back on, and did so.
    • The above process, which took approximately 5 minutes, completed the strip search. At no time during that process did Constable Grabowski’s search of Ms McCann’s body go beyond a visual inspection to include any physical touching.
    • At no time during the strip search and visual inspection did Constable Grabowski’s observe any physical injury to Ms McCann’s body. Nor did Ms McCann complain of injury, or request any medical assistance.
  • Once the strip search of the accused by Constable Grabowski was completed, and all of Ms McCann’s clothing had been restored, Constable Grabowski left the accused alone in the search room. From the time Constable Grabowski entered the search room with the accused, until Constable Grabowski left the accused in that room after completing the search, no more than 8 minutes had elapsed.
  • Constable Grabowski then informed the Officer-in-charge, (Detective Constable McGregor), that the search had been completed with no further items found, and that Ms McCann had asked, (in the police cruiser en route to the police station), to exercise her right to counsel. Constable Grabowski then had no further dealings with Ms McCann.
  • The accused then was permitted to speak with a lawyer, and remain in the search room, (instead of being placed in a holding cell), until her release from custody approximately two hours later.
• In the meantime, back at the residence, a number of weapons were found during ongoing execution of the relevant search warrant. They included a “flick knife”, an expandable baton, and a blow gun.

[16] In making the above findings of fact, I am very mindful that the accused, in her testimony, put forward an account of events that differed in several significant respects.

[17] For example, in her testimony, Ms McCann claimed she was lying compliant on the bed, with her hands in the air, when four officers entered the bedroom and a single unknown officer then “ripped” her from her bed and forcefully “threw” her to the ground, in a hurtful way, before handcuffing her in a rough and excessively tight manner. She also claimed that the officers permitted Mr Killian to kick her repeatedly in the head as he struggled, before eventually moving him away from her. She says the same single officer then raised her from the floor, and did so by intentionally touching her left breast. She also says all this was done while she “kept telling the officer not to touch” her.

[18] However, I reject such suggestions, and prefer instead the testimony of Constable Clarke, reflected in the above findings concerning the manner of Ms McCann’s arrest. I do so for numerous reasons, which include the following:

• From the Crown’s perspective, the primary account of Ms McCann’s arrest was provided by Constable Clarke, and in my view he was a credible witness. Throughout his testimony, there were numerous indications of his determination to be careful, accurate and fair in his testimony, which included the following:
  • He was quick to disclaim any knowledge of the ITO used to obtain the search warrant, and readily confirmed that the warrant itself, (as opposed to information received during his briefing), made no reference to the possible presence of weapons in the residence.
  • When he could not recall with certainty whether he personally had been present during any prior arrest of Ms McCann, he expressly felt it best to err on the side of caution and say that he had not.
  • Where he could not recall certain information not recorded in his notes, (e.g., whether Mr Killian had been mentioned by name during the briefing provided to members of the ERU team, or whether another individual named Dan Turner was located in the apartment during execution of the warrant), Constable Clarke made that clear.
  • Constable Clarke also refrained from attributing any misconduct to the accused, during the course of her arrest and execution of the search warrant, when he felt such suggestions were unwarranted. For example, while indicating that Ms McCann did not immediately get off the bed and onto the floor, in response to instructions, Constable Clarke also indicated that Ms McCann made no threatening gestures while on the bed, and did not “struggle at all” with his efforts to bring her to the floor. To the contrary, he emphasized that he personally did not attribute any delay in Ms McCann getting down onto the floor to any resistance on her part. Constable Clarke instead indicated his belief that Ms McCann was compliant, and that the relevant delay was attributable to the accused simply being in a physical position on the bed that “slowed things down”; i.e., a position that prevented her from quickly getting her legs out from under her and moving to the edge of the bed, in order to get down onto the floor. Similarly, he made clear his opinion that Ms McCann was compliant while being cuffed, and subsequently did not struggle or resist at all as she was being raised to a standing position from the floor.
• In my opinion, Constable Clarke also seemed generally reliable, given his immediate vantage point for most of the events in question, and because his account of key events was corroborated in large measure by the independent accounts of Sergeant Taylor and Constable Grabowski, (who also struck me as impressive witnesses, for the reasons outlined below). Moreover, apart from minor and essentially peripheral matters, (e.g., the timing of one particular prior involvement with Ms McCann, provided only as an example of previous interactions which had led Constable Clarke to have familiarity with the accused), Constable Clarke’s testimony generally was free of inconsistencies, especially in relation to matters central to this application, and in my view his testimony in that regard was not only plausible but also not shaken in any meaningful way by cross-examination.
• In my view, Constable Clarke seemed genuinely surprised and somewhat shocked by repeated suggestions, put to him in cross-examination by defence counsel, that he had used rough force in relation to Ms McCann, and/or that he had touched Ms McCann’s body and breasts inappropriately. In a compelling and convincing manner, Constable Clarke firmly denied any and all such suggestions, forcefully and repeatedly saying “Absolutely not!”
• In contrast, Ms McCann’s testimony was undermined by assertions that seemed exaggerated, inconsistent and/or implausible. For example:
  • Ms McCann says she was terrified because the men entering her apartment were all in masks, and she did not know they were police officers. However, this seems incredible to me, given the markings on the ERU tactical uniforms, and Ms McCann’s own indications that the men repeatedly were saying “Police, Police”.
  • Ms McCann initially claimed that four ERU officers entered her room simultaneously, immediately after entering the apartment. That suggestion was contrary to the testimony of Constable Clarke, (who made it clear that he and Constable Weyers initially entered the bedroom on their own), the standard practices outlined by Sergeant Taylor, (including indications that ERU team members make a practice of entering rooms in pairs), and the testimony of Constable Clarke and Sergeant Taylor that the officers initially in the room were obliged to call for “support” and for Sergeant Taylor. Moreover, the accused herself indicated that, at the time of her arrest, the officers in the room were having difficulty subduing Mr Killian, who was struggling. In my view, that would not have been the case had three officers been available to address his situation immediately, while Constable Clarke was dealing with Ms McCann. Similarly, Ms McCann indicated later in her testimony, during cross-examination, that the “first officer” did indeed call another officer “in to assist” with the situation when her breast was exposed, that there initially were not four officers in her bedroom, and that four officers were in the bedroom only eventually.
  • Given that entry of the police into the bedroom and securing of the accused took place in a matter of seconds, I think it implausible that the accused already would have been lying compliantly on the bed with her hands in the air by the time of Constable Clarke’s entry into the bedroom. In her own testimony, Ms McCann emphasized that she was “yelling and freaking out”, as she “didn’t know what was going on”. In my view, neither indication seems consistent with her already having embarked on demonstrated compliance with intruders she knew to be police. I think it far more likely that she was, as described by Constable Clarke, upright on her bed, looking to see and determine what was happening, and reacting to the sight of the entering and armed ERU officers in their tactical apparel.
  • In my view, Ms McCann’s assertion that she remained laying down on her bed with her hands in the air before being forced to the floor, while repeatedly telling Constable Clarke not to touch her, is inconsistent with her simultaneous assertion of compliance. In that regard, she acknowledges seeing what was being done by the police in relation to Mr Killian, (which in my view made it clear that the officers wanted occupants of the apartment down on the floor), and in cross-examination confirmed hearing police instructions to “get on the ground” and “get down”, which is consistent with Constable Clarke’s testimony about the directions he was saying to the accused. If Ms McCann intentionally remained lying on the bed, failed to get down on the floor despite police instructions, and expressly indicated that she would not permit the approaching officer to touch her, (which was necessary for her arrest), she would not have been compliant.
  • Ms McCann initially claimed that, apart from yelling “Stratford Police” as they entered, the officer arresting her, (whom she now knows to have been Constable Clarke), said nothing whatsoever to her during the course of effecting his arrest. However, Constable Clarke’s clear purpose was to place Ms McCann under arrest, and I think it quite incredible that a trained officer with many years of police service would have effected an arrest in complete silence. Similarly, I think it unlikely that any ERU officer in Constable Clarke’s position, working to gain control quickly over an unpredictable situation, to ensure the safety of all concerned, would not have given some form of verbal direction to the accused. In cross-examination, Ms McCann acknowledged that she found the initial situation after police entry into her apartment “very chaotic”, with things happening very quickly from her perspective, all of which likely was conducive, I think, to her not registering all that was said to her. Moreover, as noted above, Ms McCann herself eventually acknowledged, in cross-examination, having heard police commands to “get on the ground” and “get down”, which is consistent with Constable Clarke’s evidence of the instructions he was giving to Ms McCann at the time.
  • Ms McCann herself acknowledged in cross-examination that, in bringing her to the floor, the arresting officer did not strike or kick her, and did not touch any part of her body apart from taking hold of her arm. Ms McCann also acknowledged, in cross-examination, that the entire process of the arresting officer putting his hand on her and bringing her to the floor happened in a “very fast movement” that lasted no more than a “few seconds”, none of which suggests, to me, a painful application of force of any significant duration.
  • Ms McCann claimed that, while lying prone on the floor, with her hands secured behind her, she was able to see that there definitely was nothing sticking out of her brassiere. However, I think unlikely, if not impossible, that Ms McCann would have been in a position to visually inspect all areas of her chest area and brassiere that she was lying on at the time. That makes me question Ms McCann’s similar assertion of being able to see, with certainty, that there was nothing sticking out of her brassiere when she was standing. Moreover, Constable Clarke’s confirmed contemporaneous signal to Constable Grabowski, directing her to search the accused’s chest area, reinforces the reliability of his testimony that he was indeed able to see something sticking out of the accused’s brassiere when she was raised from the floor, and before her shirt was adjusted.
  • Ms McCann initially claimed that the single officer who raised her from the floor did so touching her left breast, while not touching “anything else”. She also insisted that touching of her breast by the arresting officer was quite intentional, and rejected the possibility of such contact being some kind of accident. In my view, such lifting, (necessarily reaching under the accused to lift her by the left breast and only the left breast), would have been entirely unnatural and ineffective. I think it much more plausible that Constable Clarke raised the accused, (as he described), by taking hold of the accused’s arm, which would have been immediately accessible as he reached down to the prostrate accused from above. Indeed, during the course of cross-examination, Ms McCann herself indicated at one point that she had been raised from the floor by the arresting officer placing his hand on her arm to lift her up.
  • In my view, the suggestion that Constable Clarke raised the accused by her left breast is at odds with the unchallenged police testimony, confirmed by Ms McCann herself, that Constable Clarke was reluctant and/or unwilling to touch or deal with the accused’s exposed left breast without calling for the involvement of a senior officer, and that Constable Clarke refrained from doing so after the accused was raised to her feet.
  • Similarly, in my view, the accused’s suggestion of Constable Clarke being willing to touch the breast of the accused intentionally, while raising her from the floor, seems quite at odds with Constable Clarke’s demonstrated restraint in leaving removal of the plastic baggie, noticed in the breast area of the accused, to the female police officer waiting outside.
  • Although Ms McCann suggested that her cuffs were so tight that they were cutting off her circulation, and that she continued to complain in that regard by asking Constable Grabowski to loosen them en route to the station, no such suggestion was put to Constable Grabowski during the course of cross-examination. Moreover, Constable Grabowski’s notes contain detailed reference to back and forth comments made to and by the accused after the accused was placed in the cruiser, (e.g., in relation to providing the accused with her rights), and there is no mention of such an exchange.
  • Although Ms McCann claimed to have sustained physical injuries such as bruising that were apparent after her release from police custody, there was no objective evidence whatsoever, in the form of photographs or otherwise, of Ms McCann receiving any injuries during her arrest, (such as bruising, scrapes or other marks to her arms, wrists, knees or otherwise), which in turn may have suggested or supported her claims that she repeatedly was subjected to excessive use of force. She herself denies having ever asked for medical attention. Nor did she file any complaint with the Police Services Board.

[19] In her testimony, the accused also claimed that, despite her expressly and repeatedly telling the officers not to touch her, the fourth officer who entered the bedroom, (after being called in to assist with the situation of her exposed breast), used one hand to fix her shirt while using his other hand to manually “shove” or “push” the exposed breast back into Ms McCann’s shirt, all without saying anything whatsoever to her. However, I do not believe or accept Ms McCann’s account of events in that regard, for reasons that include the following:

• Constable Clarke and Sergeant Taylor firmly denied such suggestions, and I prefer their evidence. In that regard, I already have indicated why I regard Constable Clarke as a credible and reliable witness. However, I formed a similar impression of Sergeant Taylor. He gave his testimony in a similarly careful and fair manner, making it clear whether he was or was not able to observe certain events, (e.g., owing to the fact he was at the “back of the stack” of ERU members as it approached the accused’s apartment), and when he had no direct knowledge of certain matters, (e.g., readily confirming that he personally had never seen Ms McCann in the process of taking drugs, or in possession of a weapon, prior to execution of the search warrant). He also candidly indicated when he was unable to recall certain particulars, (such as the precise way certain people were positioned or facing at given moments, or the specific words he used when speaking with Ms McCann before he adjusted her shirt). What he could recall nevertheless generally was described in a sure, detailed, consistent and plausible manner, (largely corroborated in material respects by the independent account of Constable Clarke), and in my view Sergeant Taylor’s account was not shaken or disturbed in any respect by cross-examination.
• I also think it noteworthy that Constable Clarke and Sergeant Taylor, in their independent accounts of what transpired in the apartment bedroom, each proactively disclosed and described the situation involving the accused’s exposed breast, and what was done to address that situation, even though the accused herself made no mention of it in the affidavit she swore in support of her application.
• When testifying, Sergeant Taylor also emphasized, in a manner that seemed quite sincere to me, his contemporaneous feeling that Ms McCann’s exposed breast had created a situation undoubtedly uncomfortable for her, but a situation also uncomfortable for everyone in the bedroom, such that he personally was trying his best to avoid even looking at her exposed breast. Despite his discomfort, Sergeant Taylor felt that, as the senior officer present and in the absence of any female officer, he had a duty to address the situation quickly, and “cover up” Ms McCann before she was led outside. In the circumstances, I think it highly unlikely that Sergeant Taylor intentionally would have engaged in direct touching of Ms McCann’s breast while addressing the situation.
• Moreover, as sensitivity to a delicate situation was being demonstrated by Constable Clarke, in calling on a senior officer for assistance, I think it implausible that the senior officer in question, clearly sensitive to his role as such, and awaiting an anticipated promotion, would have responded to the example set by his junior officer, in the presence of two other junior officers, by addressing the situation in the rough and insensitive manner suggested by the accused.
• Finally, Ms McCann herself knew that her breast was exposed, that her hands were restrained, and that she was going to be led outside. In the circumstances, I think it very unlikely that Ms McCann would have been telling the officers she wanted none of them to address the situation to avoid otherwise inevitable prolonged embarrassment. I also think it very unlikely that Ms McCann would have been speaking to the officers without them saying anything in response.

[20] In her application record, Ms McCann claimed that “a male officer forcefully searched her body and forcefully touched her breasts from all sides and from underneath to determine whether she concealed anything on her body”. Similarly, in her sworn affidavit submitted in support of her application, Ms McCann swore the following: “A male officer, in the presence of another male officer and another male who was at my house, forcefully touched my body all over and forcefully touched my breasts from all sides and from underneath to determine whether I concealed anything on my body”. However, in her testimony-in-chief at the hearing before me, and in cross-examination, Ms McCann asserted that the arresting officer had touched her arm and then only her left breast while the accused was being raised from the floor, and that the officer called in to assist with the accused’s exposed left breast had touched only that breast while putting it back into Ms McCann’s shirt. Ms McCann also expressly acknowledged and confirmed in cross-examination that any suggestion of a male officer conducting any form of pat down search of her in the house was in fact false. Such considerations reinforced my impression that Ms McCann was neither a credible nor reliable witness.

[21] In defence cross-examination and the testimony of the accused, it also was suggested that Ms McCann repeatedly and loudly yelled “I’ve been violated!” as she was led from the house to Constable Grabowski, and told Constable Grabowski not to touch her. Moreover, it was suggested that Constable Grabowski, in the course of searching Ms McCann’s person outside the residence and before transport to the police station, inappropriately reached inside the accused’s clothing without first otherwise detecting a reason to do so, and/or removed or rearranged Ms McCann’s clothing so as to expose her private areas to the observation of Constable Clarke, as well as other officers and a “bunch of civilians” looking on.

[22] However, for a number of reasons, I reject such suggestions of contemporaneous complaints and/or humiliating exposure, find Ms McCann’s testimony in that regard implausible and/or unreliable, and prefer instead the testimony of Constables Grabowski and Clarke in that regard. In particular:

• I already have commented on my views of Constable Clarke as a witness. However, I also had a favourable impression of Constable Grabowski’s credibility and reliability. Her testimony was delivered in a forthright and straightforward manner, without any notable inconsistencies, and in many significant respects, her testimony was corroborated by the accused herself. Like Constable Clarke and Sergeant Taylor, Constable Grabowski was candid about what she could and could not recall, (e.g., whether there were civilians in the area of the residence, whether the accused was wearing underwear, and whether the accused was asked to remove a tampon at the time of the strip search), and not given to making assertions potentially helpful to the Crown or harmful to the accused when she was unsure of the facts. When she had no definite memory one way or the other, (in relation to certain suggestions put to her by defence counsel), Constable Grabowski readily conceded that certain matters were possible. In my view, all of this reinforced the impression of Constable Grabowski as a fair witness, as well as the force of her testimony, not shaken in cross-examination, concerning what she definitely did remember happening or not happening.
• Constable Clarke and Constable Grabowski both firmly denied suggestions that the accused was voicing complaints or concerns as she was being led to the police cruiser, and the affidavit sworn by the accused in support of her application contains no such suggestion.
• Ms McCann claimed that the plastic baggies and currency admittedly contained in her brassiere had been in their same location “for a couple of days” at the time of her arrest[^4], which in my view seems inherently unlikely. Methamphetamine is highly addictive to users, and more valuable to traffickers when sold for profit. In my view, neither a user nor a trafficker would have left such a narcotic undisturbed for days at a time in such a personal space.
• While Constable Grabowski candidly acknowledges reaching inside Ms McCann’s clothing, in order to remove the detected baggies of methamphetamine and currency, the officer said, and I accept, that she did so after first detecting objects by patting along the outside of the accused’s clothing. The accused effectively suggested that was impossible, as she had placed the discovered items underneath her breasts, and was wearing a brassiere with at least “an inch or more of padding at the bottom”. In my view, however, the quantity of drugs found in the accused’s brassiere made it likely that some form of bump or irregularity could and would have been detected regardless of otherwise evenly distributed padding in the accused’s brassiere. Moreover, the disclosure of the accused’s breast makes it clear that her shirt and brassiere obviously were moved and displaced to some extent during the course of her being put to or raised from the carpeted floor, which in turn makes it likely that the relevant items had moved as well.[^5] Furthermore, at least one of the baggies and the folded bundle of currency were found at the outer sides of the accused’s brassiere. Finally, Ms McCann herself indicated that removal of the items from her brassiere took “a little longer than a few seconds” because Constable Grabowski was “patting around” them. In my view, the acknowledgement of such “patting around” the items before their removal supports Constable Grabowski’s assertion that it was the patting which led to their discovery, (as opposed to Constable Grabowski simply reaching into the accused’s brassiere without reason).
• Constable Grabowski repeatedly denied exposing any skin of the accused during the outdoor search, the accused herself made no such suggestion during her testimony-in-chief, (although she belated did so when the failure was highlighted during cross-examination), and I think it unlikely, as a practical matter, that visual exposure of Ms McCann’s private areas was required to effect Constable Grabowski’s admitted removal of items from the accused’s brassiere. In particular, Ms McCann confirmed that her tank top shirt covered neither the shoulders nor armpits, thereby making it possible, in my view, for Constable Grabowski to reach in through the sides of the accused’s shirt. That shirt was not removed, so as to expose Ms McCann’s undergarments. Moreover, Constable Grabowski knew that removal of Ms McCann’s clothing, to permit a more thorough visual inspection, would be possible after Ms McCann had been transported the relatively short distance back to the Stratford police station.
• Ms McCann’s account of the number of officers present outside the house struck me as exaggerated and/or inaccurate. In particular, she suggested there were 6-8 officers outside the house in “civilian” or “regular” clothing, carrying rifles. If all the ERU officers were wearing their ERU tactical uniforms, (which I accept), Ms McCann’s assertion would suggest an almost equal number of heavily armed officers outside the house in plain clothes. The presence of such an additional heavily armed police presence, outside the house, is at odds with the testimony of the three police witnesses. In my view, such a force also would have been inherently redundant, unnecessary and unlikely, given the relatively small size of the Stratford Police Service and the financial considerations emphasized by Sergeant Taylor.
• As noted above, Constable Clarke remained in the vicinity of Constable Grabowski’s cruiser as the female officer engaged in the aforesaid search of the accused’s person. However, in unchallenged testimony, Constable Clarke confirmed that, after watching Constable Grabowski commence the search, he deliberately looked away, as he felt it “best for Ms McCann that a male wasn’t sitting there watching her be searched”. Moreover, during the course of what he did observe, he saw no items of the accused’s clothing being removed by Officer Grabowski, and nothing of Ms McCann’s breast or other private areas. I think it unlikely that Constable Clarke would lie about such matters, given his readiness to acknowledge seeing Ms McCann’s fully exposed breast a short time before.
• Although Constable Clarke confirmed in cross-examination that there were many officers “around” and “outside of their vehicles” at that stage of the operation, (which hardly seems surprising), there was no evidence to clarify or define the scope of the area contemplated by such answers, no evidence to suggest that such officers were idle and/or in the immediate vicinity at the time of the search of the accused conducted by Constable Grabowski, and no evidence to indicate or suggest that other officers may have been focused on the search of Ms McCann for any reason. For her part, Constable Grabowski could not recall seeing any member of the ERU other than Constable Clarke, or any particular officer or officers other than Constable Clarke being in the area at the time her arrival on scene and the search of Ms McCann beside the police cruiser. In my view, the memories and testimony of both officers, who made numerous detailed observations in other respects, strongly suggests that no other officer was close enough to be noticed and remembered, or close enough to take any detailed notice of where and how Ms McCann was being searched.
• As for members of the public, although Ms McCann suggested that a “crowd” had gathered outside, she also indicated there were no more than “5-10 people standing around”. Moreover, presence in the area of civilians at the time of the search is not necessarily correlative with such people actually looking at or watching the search of Ms McCann, given that there was much to be seen at the time, and the accused herself could not say whether any of the civilians she may have noticed were looking at her. Constable Clarke confirmed that a secure perimeter would not have been established in the circumstances, (as the targeted residence was upstairs and generally accessible only by a single staircase), and that the street past the house would not have been formally closed to vehicles. However, despite their detailed memory of other matters, Constables Clarke and Grabowski each had no recollection of any members of the public being in the area, or of any cars passing, (although both officers acknowledged the possibility). Moreover, I think it inherently unlikely that members of the public would have been permitted to walk or congregate in the areas between the front of the house and nearby police vehicles in a situation where armed officers were leading arrested or detained individuals from the house to those vehicles. In my view, any members of the public in the area, and paying attention, accordingly would have been observing any search of Ms McCann, if at all, from a distance. Furthermore, any passing vehicles, and any members of the public watching from the street or across the street, effectively would have had their view of the search obstructed by Constable Grabowski’s police cruiser.
• Ms McCann herself indicated that Constable Grabowski’s removal of items from her brassiere was “done pretty quickly”.
• In short, I do not believe or accept that Ms McCann’s private areas were exposed to view by anyone during the course of Constable Grabowski’s outdoor pat down search of the accused, before Ms McCann was placed in Constable Grabowski’s police cruiser. Nor do I think other officers, or any member of the public, had or exercised any meaningful opportunity to observe such an exposure, had one occurred.

[23] It also was suggested, in cross-examination and testimony by the accused, that Constable Grabowski’s conduct of the strip search at the police station was inappropriate or abusive; e.g., because the accused was exposed to being viewed unclothed through the small window in the search room door, because the accused was obliged to remove all of her clothing simultaneously such that she was completely naked for a time, and/or because Constable Grabowski required Ms McCann to remove a tampon, despite Ms McCann’s protests, without then addressing the accused’s requests for a replacement tampon or a pad. I do not accept those suggestions either. In that regard:

• The affidavit sworn by the accused in support of her application included no mention whatsoever of the strip search conducted back at the police station, let alone any allegation or suggestion that it was conducted in an abusive fashion. In cross-examination, the accused confirmed her understanding that her intended Charter application was her opportunity to raise complaints and concerns about how she was treated by the police at the time of her arrest and corresponding police searches. In my view, if the accused had any honest and serious complaint about the strip search conducted by Constable Grabowski back at the police station, the accused would have raised or at least mentioned it in her affidavit, along with her other complaints of police misconduct, instead of advancing suggestions of such additional improprieties belatedly.
• Constable Grabowski was firm in her memory of following, in relation to the accused, her standard practice of having female subjects being searched stand at the wall to the right of the room door, at the end of the room, to protect the subject’s privacy and prevent the subject from being seen through the door window. The accused herself acknowledged that Constable Grabowski asked the accused to stand up against a wall, (rather than disrobe in the middle of the room), and that suggests to me that Constable Grabowski was indeed making efforts to help ensure that the accused would not be seen through the door window.
• Constable Grabowski knew and described a standard protocol governing the manner in which a strip search was to be conducted, including having subjects remove upper and lower body clothing separately, and in succession, to avoid and effectively prevent a subject from unnecessarily being completely naked. The accused herself effectively gave indications of conduct suggesting that protocol was being followed in numerous ways, (e.g., by Constable Grabowski asking the accused to stand up against the wall, and successively remove and replace items of clothing on her own). There was nothing to suggest any reason for a gratuitous deviation from that protocol, and no such deviation was put to Constable Grabowski in cross-examination. Given the other reasons indicated herein for regarding Ms McCann as a witness lacking in credibility and reliability, I simply do not believe or accept her claim that she was left completely naked at any point during the strip search conducted by Constable Grabowski.
• For similar reasons, I also do not believe Ms McCann’s assertion that she requested and was denied a feminine hygiene product. In that regard, Constable Grabowski did not hesitate to confirm that, if a tampon had been present, the accused would have been asked to remove it herself, (to preserve her dignity), to complete the visual inspection for contraband. Constable Grabowski nevertheless also made it clear that, in such cases, the female subject then would be provided with a pad, (from a supply kept at the police station), and that Constable Grabowski had no reason whatsoever to not supply such a pad to the accused. While fairly acknowledging the possibilities, the officer said she could not recall the accused having a tampon at the time of the strip search, being asked to remove it, or asking for a replacement product. However, I think it likely that Constable Grabowski would have remembered any such conversation in that regard, had it taken place, given her detailed recollection of other statements made to and by the accused. I therefore do not think the tampon related events and conversations suggested by the accused took place. Moreover, given Constable Grabowski’s repeated demonstrations of sensitivity in relation to Ms McCann’s privacy, dignity, welfare and rights, (e.g., conducting a pat down search of the accused’s private areas with the back of the officer’s hand, allowing Ms McCann to remove and restore her own clothing, allowing the accused to remove her clothing in a manner such that she was never fully naked, and conveying Ms McCann’s request for counsel to the officer-in-charge), I think it very unlikely that Constable Grabowski would have acted callously and inconsistently by failing to address the accused’s need or request for a feminine hygiene product, had such a situation existed and had such a request been made.
• My above impressions regarding the strength of Constable Grabowski’s evidence, and corresponding conclusions, were reinforced by the officer’s indications that the search room was equipped with operating video cameras that were recording events in the room. I received no evidence to indicate whether that recording was requested, and no such recording was entered into evidence. However, the existence of such a recording was not challenged or disputed, and the fact that Constable Grabowski readily indicated the presence of such recording cameras indicated to me that she firmly believed in the accuracy of her testimony regarding the manner in which the search was carried out.

Analysis

[24] With all of the above evidence in mind, I turn first to an analysis of whether or not the accused has satisfied her general onus of proving, on a balance of probabilities, that her section 7 and/or section 8 Charter rights were violated.

[25] In my view, the accused’s complaints and arguments in that regard essentially targeted the following general areas of police conduct in relation to the accused and her residence:

i. the overall search of the accused’s residence, which was said to have violated the accused’s rights under section 8 of the Charter; ii. the treatment of the accused during and after her arrest, which was said to have violated her rights under section 7 of the Charter; iii. the search of the accused by Constable Grabowski outside of the house, before the accused was placed in Constable Grabowski’s police cruiser, which was said to have violated Ms McCann’s rights under section 8 of the Charter; and iv. the search of the accused by Constable Grabowski back at the police station, which also was said to have violated the accused’s rights under section 8 of the Charter.

[26] Before turning to an assessment of such issues in this particular case, I pause to note a number of general principles relevant to the application of sections 7 and 8 of the Charter.

GENERAL PRINCIPLES – SECTIONS 7 AND 8

[27] In relation to section 7 of the Charter, general principles and considerations include the following:

• Section 7 of the Charter guarantees a broad and general right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
• To show that his or her section 7 right to security of the person was violated, an accused must show a substantial interference with his or her physical or psychological integrity or with the integrity of the justice system. See R. v. Pan, 2012 ONCA 581, [2012] O.J. No. 4162 (C.A.), at paragraph 45.
• Excessive force may give rise to a breach of section 7 if it substantially interferes with an accused’s security of the person interest. However, the use of force that is not excessive – even force that gives rise to foreseeable injury - - would not likely amount to a breach of section 7. In particular, while police do not have unlimited power to inflict harm on a person in the course of their duties, the police are entitled to use force to make or complete an arrest as long as the force used is proportional, reasonable and necessary. See the Code, ss.25(1) and 25(3); R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paragraph 1; and R. v. Pan, supra, at paragraph 47.
• In that regard, police actions nevertheless should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. They often have to make quick decisions based on limited information. Their actions should be judged in light of those exigent circumstances. In particular, in determining whether the amount of force used by an officer was necessary, regard must be paid to the circumstances as they existed at the time the force was used. Moreover, the police cannot be expected to measure the force used with exactitude. In relation to situations of danger, and issues related to the safety of police officers or those whom they are duty bound to protect, courts ought to be very careful in second-guessing them. See R. v. Bottrell (1982) 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p.211; R. v. Nasogaluak, supra, at paragraph 35; and Castro v. Monteiro, [2012] O.J. No. 5865 (S.C.J.), at paragraph 45, quoted with approval in Toronto (City) Police Services Board v. Puricelli, [2014] O.J. No. 5638 (Div.Ct), at paragraph 39.

[28] In relation to section 8 of the Charter, general principles and considerations include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure, and it follows that warrantless searches are ordinarily inconsistent with s.8 of the Charter, and prima facie unreasonable under s.8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canada v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; and R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at paragraph 52.
• In that regard, a warrantless search will respect s.8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable. See R. v. Feeney, supra, at paragraph 46; and R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paragraph 44.
• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”. See R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, at paragraph 33.
• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his or her person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his or her escape. See R. v. Rao, 1984 2184 (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38.
• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him or her, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:
  • The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.
  • The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).
  • The search also must not be conducted in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. See Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at paragraphs 49, 56, and 61-62.
• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. See Cloutier v. Langlois, supra, at paragraph 59; and R v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at paragraphs 19-20 and 25.
• In relation to searches of a private residence:
  • Unless exigent circumstances exist, the police must knock and announce their presence before entering a home, even when they have a search warrant. In particular, in the ordinary case, police should give notice of their presence by knocking or ringing a door bell, give notice of authority by identifying themselves as law enforcement officers, and provide notice of purpose by stating a lawful reason for entry. The rationales for the rule are the protection of the dignity and privacy interests of the occupants, and the enhancement of the safety of the police and the public. However, exigent circumstances may justify what has been called a “dynamic entry”, (i.e., a departure from the “knock-and-announce rule”), or a “hard entry”, (e.g., ramming open a door without knocking or announcing their presence). See, for example: Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739, at p.747; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paragraphs 18-19; and R. v. Pan, supra, at paragraphs 35-37.
  • Where the police depart from the “knock-and-announce” approach, there is an onus on them to explain why they thought it necessary to do so. In particular, if the police decision in that regard is challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behavior must be apparent in the record, and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications. See R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, 1991 24 (SCC), [1991] 3 S.C.R. 692, at p.693; and R. v. Cornell, supra, at paragraph 20.
  • It nevertheless must be remembered that the evidence must simply establish reasonable grounds to be concerned about the possibility of violence. If there is even a low risk of weapons being present, section 8 of the Charter does not require the police to put their lives or safety on the line. See R. v. Cornell, supra, at paragraph 20.
  • Moreover, the decision by the police must be judged by what was or should reasonably have been known to them at the time, and not in light of how things turned out to be. In particular, just as the Crown cannot rely on after-the-fact justifications for a search or the manner in which it was conducted, the decision about how to conduct the search cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time. In other words, whether or not there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the lens of hindsight”. See R. v. Cornell, supra, at paragraph 23.
  • Furthermore, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance, with nuanced precision, the amount of force the situation will require. It is often said of security measures that, if something happens, the measures were inadequate but if nothing happens, they were excessive. Such after-the-fact assessments are unfair and inappropriate when applied to situations where officers must exercise discretion and judgment in difficult and fluid circumstances. The role of a reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement. It is not to become a “Monday morning quarterback”. See R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paragraph 73; and R. v. Cornell, supra, at paragraph 45.
• In relation to strip searches conducted as an incident to arrest:
  • Such searches are properly defined as those involving 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. Such searches are inherently humiliating and degrading for detainees. See R. v. Golden, supra, at paragraphs 47 and 90.
  • “Strip searches” must be distinguished from less intrusive searches of the person, (such as “pat or frisk” searches), and from more intrusive searches of the person, (such as “intimate” or “body cavity” searches). The distinctions are important, as different types of searches raise different constitutional considerations. In particular, more intrusive searches require a greater degree of justification and constitutional protection, and vice versa. See R. v. Golden, supra, at paragraphs 87-89.
  • Strip searches are only constitutionally valid at common law where:
    • they are conducted as an incident to lawful arrest, for the purpose of discovering weapons in a detainee’s possession or evidence related to the reason for the arrest; and
    • where the police establish reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest. See R. v. Golden, supra, at paragraph 99.
  • Where the common law preconditions for conducting a strip search incident to arrest are met, the strip search also must be conducted in a manner that does not infringe section 8 of the Charter. In the absence of prior judicial authorization, (e.g., via warrants or telewarrants), the following questions provide a framework for deciding how best to conduct a strip search that is Charter compliant:
    • Can the strip search be conducted at the police station, and if not, why not?
    • Will the strip search be conducted in a manner that ensures the health and safety of all involved?
    • Will the strip search be authorized by a police officer acting in a supervisory capacity?
    • Has it been ensured that the police officer or officers carrying out the strip search are of the same gender as the individual being searched?
    • Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
    • What is the minimum of force necessary to conduct the strip search?
    • 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?
    • 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?
    • Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
    • 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 option of removing the object himself or of having the object removed by a trained medical professional?
    • Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? See R. v. Golden, supra, at paragraphs 100-101.
  • Because strip searches conducted “in the field” represent a much greater invasion of privacy, and pose a greater threat to the detainee’s bodily integrity, they can only be justified in exigent circumstances. In particular, strip searches generally should be conducted only at the police station, except where there are exigent circumstances requiring that the detained person be searched prior to being transported to the police station. Such exigent circumstances will be established only where:
    • the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station;
    • there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals; and
    • the police show why it would have been unsafe to wait and conduct the strip search at the police station, rather than in the field. See R. v. Golden, supra, at paragraph 102.
  • More generally, because strip searches are of such an invasive character, they must be considered prima facie unreasonable. In any case involving a strip search, it therefore is up to the state to rebut that presumption, because the state is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did. In particular, where the reasonableness of a strip search is challenged, it is the Crown that bears the onus of proving its legality by convincing the court, on a balance of probabilities, either:
    • that reasonable and probable grounds as well as exigent circumstances existed, such that a strip search “in the field” was warranted, and conducted in a reasonable manner; or
    • that reasonable grounds existed, and that the strip search was carried out at the police station, and conducted in a reasonable manner. R. v. Golden, supra, at paragraph 105.

[29] With the above principles in mind, I now turn to an assessment of whether there have been breaches of the section 7 and/or section 8 Charter rights of Ms McCann as alleged in this case.

CHARTER BREACH - ANALYSIS

[30] I start with consideration of whether or not the conduct of the police in relation to their search of the accused’s residence entailed a violation of Ms McCann’s rights under section 8 of the Charter.

[31] In that regard, defence counsel argued that the search was unlawful and/or conducted in an unreasonable manner. Reliance was placed in particular on submissions that included the following:

• that the police violated the terms of the warrant or the anticipated manner of its execution by failing to knock before breaching the door of the apartment, and a knock might have resulted in the door being opened voluntarily by someone inside;
• that the deployment of the ERU was unnecessary and inappropriate on the basis that ERU deployment, and dynamic or hard entries, should be reserved for severe cases involving terrorism or gang violence;
• that the deployment of the ERU was unnecessary and inappropriate, as the occupants of the residence, and the accused in particular, were not armed, violent or engaged in illegal activity when the officers entered, and there was in fact no situation of danger;
• that the wearing of balaclavas by armed ERU officers was unnecessarily terrifying; and
• that the number of police officers participating in the operation was excessive.

[32] I am not persuaded by such arguments, many of which, in my view, are not supported on the facts and/or seem premised on an inaccurate view of the law. My reasons in that regard include the following:

• The relevant search warrant obtained by the police authorized the police to enter and search the accused’s residence. The police efforts to search the residence accordingly did not involve a warrantless search that was prima facie unreasonable.
• The warrant itself was silent as to its manner of execution, (as opposed to the time of its execution), and contained no indication of whether the police were required to knock before entering. In my view, the manner of police entry into the premises, (including whether a “knock-and-announce” approach was required, and whether and how any departure from that approach might be justified), was instead governed by the authorities outlined above.[^6]
• If the circumstances required a “knock-and-announce” approach in this case, in my view the accused, (who generally has the burden of establishing a section 8 breach), cannot establish that there was a departure from the requirements of that approach in the circumstances. The evidence unequivocally confirms that the police gave notice of authority by identifying themselves as law enforcement officers, and simultaneously provided notice of purpose by stating a lawful reason for entry, when they came into the apartment repeatedly yelling “Stratford police, search warrant!” The remaining question is whether they knocked or rang a door bell before the apartment door was breached, and for the reasons outlined above, the available evidence was insufficient to establish a knock or failure to knock. Again, the accused bears the burden of proof in this context, and in my view, she accordingly did not establish any failure to knock.
• Moreover, even if it had been established that the police failed to knock before breaching the door and entering the apartment, (thereby casting an onus on them to explain why they thought it necessary to do so, and justify their approach), in my view the Crown has supplied a sufficient evidentiary framework, (without relying on any ex post facto justifications such as the number of persons and weapons found in the apartment), to support a conclusion that the police had reasonable grounds to be concerned about the destruction of evidence and/or possibility of harm to themselves or occupants. In that regard, I have in mind, and will not repeat here in detail, all of the many reasons provided by the police, (and outlined at pages 6-8 of these reasons), to explain why they felt it advisable to involve and deploy the ERU in the particular circumstances of this case. Relying on confidential informant information, surveillance and personal experience, the police had reasonable grounds to be concerned about the ready destruction of drug-related evidence targeted by the warrant, and reasonable grounds to be concerned about the possibility of violence.
• On the latter point, I think it bears repeating, (albeit not in the same level of detail as I did earlier), that the police had reliable confidential information, surveillance and personal experience indicating that the accused and others occupying or visiting the apartment were users of methamphetamine, (which results in highly unpredictable behaviour, previously demonstrated by the accused); that the apartment was being visited by persons with criminal records who were prone to violence; that the number and identity of individuals to be found in the apartment was uncertain; and that the accused and others visiting the apartment were known and/or found to carry weapons. In my view, the defence submission that ERU deployment must be restricted to situations involving terrorism and gang violence is simply not consistent with the law of Canada. As noted above, even a low risk of weapons being present does not require the police to put their lives or safety on the line. In my view, the level of risk in the particular circumstances of this case was significantly higher than that, and substantial.
• Consistent with the authorities I have cited, (particularly R. v. Cornell, supra), I also reject efforts by the defence to argue, with the benefit of hindsight, that the situation in the apartment actually was not that dangerous, and did not warrant deployment of the ERU. For example, it was emphasized that the police were not met with violent resistance once they entered the apartment; that there was no evidence that the accused or others found in the apartment were carrying weapons; and that the accused was simply on her bed and not engaged in any illegal activity when the police entered her residence. However, just as the police cannot justify their conduct by reliance on the methamphetamine and weapons later confirmed to have been in the apartment when the police entered, the accused cannot attack the police decision to employ the ERU, and effect a dynamic or hard entry, on the basis of circumstances that were not reasonably known to the police at the time they made and acted on their decisions.
• Although the defence repeatedly criticized the ERU use of balaclavas, in my view the police witnesses provided a rational and sensible explanation in that regard, (outlined at pages 8-9 of these reasons), falling within the permissible latitude of discretion given to police in choosing the manner in which they chose to enter the apartment where risks of danger have been identified. Although the number of officers involved in the operation also was criticized by the defence, I have found, for the reasons indicated herein, that the number was not as high as that suggested by Ms McCann’s testimony. More generally, I think such resource decisions made by the police in relation to their deployment of the ERU in these particular circumstances, and the manner in which they entered the residence, should not be second-guessed lightly through “the lens of hindsight”.

[33] For such reasons, Ms McCann accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of her section 8 right to be secure from unreasonable search and seizure, as far as execution of the search warrant in relation to her apartment is concerned.

[34] I turn next to consideration of whether the treatment of Ms McCann during and after her arrest involved a breach of her section 7 Charter right not to be deprived of life, liberty or security of the person, except in accordance with the principles of fundamental justice.

[35] In that regard, I think it important to note that, in relation to the accused’s application, there was no suggestion that the accused’s arrest was unlawful; e.g., in the sense that the police lacked reasonable and probable grounds, subjectively and objectively, to arrest Ms McCann.

[36] The defence instead focused on allegations that the treatment of the accused during and after her arrest involved improper excessive force that substantially interfered with her physical and/or psychological integrity. In particular, it was suggested that the police used excessive and improper force in relation to:

• the manner in which the accused was brought to the floor from the bed;
• the manner in which she was restrained and cuffed; and
• alleged touching of the accused’s left breast as she was being raised from the floor, and thereafter as her breast was being recovered.

[37] In this case, while I think there is no basis for any suggestion of substantial interference with the integrity of the justice system, I am prepared to accept the accused’s testimony that she subjectively experienced strong feelings of violation in relation to her psychological integrity, particularly in relation to the exposure of her left breast in the presence of numerous unknown males. Like Sergeant Taylor, I think such a situation must have been extremely embarrassing and uncomfortable from the accused’s perspective.

[38] Having said that, I am not persuaded that there was any excessive or improper use of force by the police, in the circumstances of this case, giving rise to a breach of section 7 of the Charter. To the contrary, I think the force used by the police during and after the arrest was proportional, reasonable and necessary. My reasons in that regard include the following:

• Even if I accepted that the accused repeatedly instructed officers not to touch her, (which I have not), that would not negate the permissible necessity of the police applying a measure of force to properly arrest and thereafter secure the accused. For example, it was necessary for Constable Clarke to take physical control of the accused to effect the arrest, and to apply a measure of force in restraining her. Similarly, the cuffing of Ms McCann’s hands behind her back also made it necessary for Constable Clarke to assist Ms McCann physically in rising from the floor, and to escort her safely down stairwells and outside to the location of Constable Grabowski’s cruiser. The circumstances also required the taking of some form of action to recover Ms McCann’s breast, (which she was unable to do herself because she was cuffed), to avoid prolonged exposure of Ms McCann’s breast in the bedroom and before she was led outside. Moreover, as noted below, the application of some measure of force is inherent in a lawful pat down search.
• In my view, the force applied to the accused during and after the arrest also was reasonable. Without limiting the generality of the foregoing:
  • In the context of uncertain circumstances involving a reasonably perceived risk of violence and weapons, (for the reasons outlined above), and a rapidly unfolding dynamic entry, it was appropriate for Constable Clarke to not only take physical hold of the accused, but also to secure and restrain the accused quickly and effectively. In particular, as she was not immediately compliant with his instructions to get down on the floor, in my view it was appropriate for Constable Clarke to use additional force to take hold of the accused’s arm and bring her to the floor, before restraining her hands.
  • It thereafter was reasonable to take hold of the accused’s arm and assist in raising her from the floor, without forcing the accused to struggle ineffectively and perhaps dangerously in that regard, with her hands secured behind her back.
  • Similarly, I think it was reasonable for the ERU officers, (and Sergeant Taylor in particular), to take some form of action, through manipulation of Ms McCann’s clothing and whatever indirect application of force that entailed, to ensure that the left breast of the accused was recovered as quickly as possible. In that regard, I think the conduct of Constable Clarke and Sergeant Taylor showed sensitivity to the accused’s dignity, and that it actually would have been unreasonable had they not acted quickly to address that particular situation.
  • For the reasons outlined above, I have found there was no touching of the accused’s breasts, in the manner alleged. If there was any touching of the breasts at all, in my view it would have been unintentional, and incidental to innocuous and well-meaning efforts to raise the accused and recover her breast.
  • In my view, it would have been unreasonable if Constable Clarke had not taken the accused by the arm when escorting her to Constable Grabowski’s cruiser. Any failure in that regard would have exposed the accused to the risks of falling down stairs or onto the ground, without use of her hands to break such a fall and prevent injury.
  • In my view, restraint and continued restraint of the accused’s hands “in the field” by cuffing was not unreasonable, particularly given the police understanding, (based on the reasonable grounds described above), that the accused was prone to unpredictable behaviour and an inclination to weapons.
  • The reasonableness of the force used during searching of the accused is discussed below.
• In my view, the force used by the police also was proportionate. In that regard:
  • Although defence counsel was critical of perceived suggestions by Constable Clarke that he used “gentle” force to take hold of the accused and bring her to the floor, that simply was not his evidence. As noted above, I accept Constable Clarke’s testimony that he took hold of the accused’s arm with a “normal” grip that was “not that hard or squeezing”, and escorted the accused from the bed to the floor in a non-violent manner. Similarly, the force used to raise the accused from the floor, by taking hold of the accused’s arm and assisting her to her feet, must have involved an effective grip and the application of sufficient lifting force that may not have been “gentle”. However, the force employed by police need not be “gentle”; it must simply be proportionate to the circumstances, and I am satisfied that the manner in which Constable Clarke moved the accused to the floor and raised her up again complied with that standard.
  • Similarly, for reasons outlined above, (e.g., the testimony of Constable Clarke and Grabowski, and my findings that there were no contemporaneous complaints or injuries/marks sustained by the accused), I am satisfied that the force used to cuff and bind the accused’s hands was proportionate; i.e., sufficient to restrain the accused effectively without being unduly rough or constrictive.
  • For the reasons outlined above, I have rejected suggestions that there was touching of the accused’s breast area, and the method employed by Sergeant Taylor to recover the accused’s exposed breast, through manipulation of clothing, involved the indirect application of force that was proportionate in the circumstances.
  • There was no suggestion that Constable Clarke applied any disproportionate force in taking hold of the accused’s upper arm to escort her down the stairs, out of the house and to Constable Grabowski’s cruiser. As noted above, there was no need to exert any significant force in that regard, as the accused was not struggling.

[39] Ms McCann accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement, during or after her arrest, of her section 7 Charter right not to be deprived of life, liberty or security of the person, except in accordance with the fundamental principles of justice.

[40] I turn next to the search of the accused’s person carried out by Constable Grabowski before Ms McCann was placed in the female officer’s cruiser, and whether that search entailed a violation of the accused’s section 8 right to be secure from unreasonable search and seizure.

[41] In that regard, defence counsel argued, at considerable length, that the search in question should be characterized as a “strip search”, thereby giving rise to the reverse onus and heightened restrictions outlined above, especially in relation to a strip search conducted “in the field”. In particular, defence counsel argued:

• that the search resulted in exposure of the accused’s personal areas, (and the accused’s breasts in particular), to officers and civilians who may have been watching;
• that the most significant aspect of a strip search is the inherent humiliation and degradation recognized by the Supreme Court of Canada;
• that the accused’s subjective personal experience involved such “utter humiliation” and sense of violation that the relevant search should be characterized as a strip search giving rise to a reverse onus and strict conditions for reasonableness, which were not capable of satisfaction given an unjustifiable strip search of the accused carried out “in the field”.

[42] With respect, I found none of those arguments persuasive.

[43] In R. v. Golden, supra, the Supreme Court of Canada adopted a very clear definition of what constitutes a “strip search” for the purpose of determining application of a corresponding “reverse onus” approach, and other heightened criteria for determining whether the search was reasonable or unreasonable. In particular, as noted above, a strip search is properly defined as one involving 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.

[44] Constable Grabowski’s search of the accused person by the police cruiser involved no removal of the accused’s clothing. While it inevitably involved a degree of clothing “rearrangement”, (e.g., as the accused’s clothing no doubt was moved to some extent when Constable Grabowski reached inside the accused’s shirt and brassiere), I have found as a fact that it resulted in no exposure of the accused’s skin or undergarments. Nor was the rearrangement done for the purpose of permitting a visual inspection of the accused’s breast area.

[45] The search in question accordingly was not a “strip search”, within the definition adopted by the Supreme Court of Canada.

[46] Defence counsel submitted that the relevant definition of a “strip search” can and should be expanded to include searches involving the touching of a person’s private areas in a manner that causes the person intense feelings of humiliation and violation. In my view, however, the argument must be rejected for numerous reasons, which include the following:

i. While it is true that the Supreme Court of Canada emphasized that strip searches are inherently humiliating and degrading, it does not logically follow that the reverse is necessarily true; i.e., that all humiliating and degrading searches should be characterized as strip searches. ii. The definition of “strip search” fashioned by the Supreme Court of Canada is focused primarily on objective criteria, whereas the effectively expanded definition suggested by defence counsel is focused on highly subjective criteria, (i.e., the extent to which the particular subject of a search feels humiliated and/or degraded), which likely would render the definition completely unworkable in practice, at least in terms of developing predictable standards for Charter-compliant conduct. iii. The Supreme Court of Canada was careful to distinguish “strip searches”, as defined by the Court, from less intrusive searches such as “pat and frisk” searches. It was emphasized that the different character of such searches raised different constitutional considerations. The safeguards developed in relation to the former, (because of the specific concerns raised by removal or displacement of a person’s clothing to permit a visual inspection of private areas or undergarments), clearly were not intended to apply necessarily or automatically to the latter. iv. In my humble opinion, effective rewriting and significant expansion of the very specific definition of “strip search” adopted by the Supreme Court of Canada, is not, in this context, an appropriate function of the Ontario Superior Court of Justice.

[47] For all these reasons, I find that the reverse onus and requirements for constitutionality applicable to strip searches, outlined at pages 34-36 of these reasons, do not apply to the search of the accused’s person conducted by Constable Grabowski beside that officer’s police cruiser.

[48] In my view, the constitutionality of that search is instead governed by the principles set forth at pages 31-33 of these reasons, and in particular, the principles relating to proper police exercise of the common law power of “search incident to arrest”. In that regard, I think the following analysis applies to the search in question:

• When the accused was presented to Constable Grabowski, the accused had been arrested by Constable Clarke just a short time before, but not yet searched, and that was understood by Constable Grabowski. The legality of the arrest was not challenged or questioned by the accused.
• In the circumstances, Constable Grabowski had a right at common law to search Ms McCann and take from her person any property reasonably believed to be connected with the offence charged, (which in this case included trafficking in methamphetamine and/or the lesser and included offence of possessing methamphetamine), or which might be used as evidence against Ms McCann, (in relation to those charges), or any weapon or instrument that might enable the accused to commit an act of violence or effect her escape.
• Moreover, the search carried out by Constable Grabowski pursuant to that common law right was/is not presumptively unreasonable. It is the accused who bears the onus of establishing that the search was unreasonable, (e.g., because it was not exercised in a manner consistent with the fundamental values enshrined in the Constitution), and in my view, the accused has not satisfied that onus. In particular:
  • In my view, the relevant search carried out by Constable Grabowski clearly was incident to arrest. Unchallenged testimony from Constables Clarke and Grabowski confirmed that, from the outset, the intention of the operation was to have the accused arrested and secured by the ERU, prior to her then being taken outside and presented to a female officer for a search incident to arrest. That is precisely what happened.
  • The unchallenged testimony of Constable Grabowski, which I accept, is that the purpose of the relevant search was to check Ms McCann for evidence or weapons before the accused was placed in the officer’s police cruiser. That was a valid objective and objectively reasonable justification, in pursuit of the ends of criminal justice.
  • I reject defence counsel’s argument that there was no valid reason for the search in the circumstances, as cuffing of the accused’s hands allegedly made it impossible for the accused to dispose of evidence and/or retrieve and employ a weapon before her arrival at the police station. In my view, the suggested impossibility is a questionable proposition, not directly addressed in evidence. More importantly, however, I think the submission really amounts to no more than an assertion that the search incident to arrest performed by Constable Grabowski was unnecessary. As noted above, the Supreme Court of Canada has made it clear that searches incident to arrest, justified by valid objectives such as location of evidence and safety, are not limited by necessity.
  • There was no evidence before me to suggest that the relevant search conducted by Constable Grabowski was unrelated to the objectives of the proper administration of justice; e.g., to intimidate, ridicule or pressure the accused into making admissions.
  • In my view, the search was not conducted in an abusive fashion. In particular, for the reasons outlined above, I do not think the accused was subjected to humiliating exposure of her private areas. The accused initially was touched over her clothing, and while that initial touching did extend to her private areas, the officer was of the same gender and used the back of her hand.
  • Although Constable Grabowski then admittedly reached inside the accused’s clothing, to quickly retrieve detected items from the accused’s brassiere, and directly touched the skin of the accused’s private areas in doing so, I do not accept defence counsel arguments that doing so rendered the search abusive and unreasonable. In my view, if police detect the presence of an item through a proper “pat and frisk” search carried out along the exterior of a person’s clothing, there reasonably must be a corresponding right of the police to then reach inside the clothing to remove that item. The legitimate goals and benefits of such searches incident to arrest otherwise would be defeated and/or rendered illusory. In particular, a person’s clothing effectively would become a legally impenetrable shield capable of concealing, and immunizing from removal, all manner of evidence, weapons and means of escape.

[49] For all these reasons, Ms McCann accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of her section 8 right to be secure from unreasonable search and seizure, as far as the search conducted by Constable Grabowski outside that officer’s police cruiser is concerned.

[50] That leaves, for consideration, Ms McCann’s similar arguments raised in relation to the search of the accused which Constable Grabowski conducted in the search room back at the police station.

[51] As the Crown readily conceded, (and I independently accept), that particular search did constituted a “strip search”, as defined by the Supreme Court of Canada. In particular, the search admittedly involved the removal of Ms McCann’s clothing, (by the accused but at the request of Constable Grabowski), so as to permit a visual inspection of all Ms McCann’s private areas and undergarments.

[52] Similarly, the Crown readily conceded, (and I independently accept), that such a strip search was inherently humiliating and degrading from Ms McCann’s perspective.

[53] Given the invasive character of that strip search, it accordingly must be considered prima facie unreasonable, such that the Crown bears the onus of proving its legality. In particular, as this was not a strip search “in the field”, but a strip search carried out at the police station, the Crown bears the onus of convincing me:

• that the strip search was conducted as in incident to lawful arrest, for the purpose of discovering weapons in Ms McCann’s possession or evidence relating to the reason for Ms McCann’s arrest;
• that there were reasonable and probable grounds justifying the strip search; and
• that the strip search was conducted in a reasonable manner.

[54] For the reasons that follow, I find that the Crown nevertheless has met that onus in the particular circumstances of this case.

[55] As noted above, apart from claims that the manner of arrest violated Ms McCann’s section 7 Charter rights, (which I have rejected), there was no suggestion that her arrest was not lawful. Moreover, unchallenged testimony of Constable Grabowski confirmed that the purpose of the strip search was further to that arrest, to ensure that Ms McCann had no further contraband not already detected by the earlier pat and frisk search carried out before the accused was placed in Constable Grabowski’s police cruiser.

[56] In my view, there also were reasonable and probable grounds justifying the strip search in this particular case. In particular, Constable Grabowski knew that the accused had been arrested and charged in relation to drug offences, and the results of the earlier search, (which in turn followed the accused’s express denial of having anything on her person), already had demonstrated to Constable Grabowski:

i. that the accused had engaged in hiding illicit substances on her person, despite being inside her personal residence, and despite having little or no warning that the police were about to enter that residence to execute a search warrant and arrest the accused; and ii. that the accused was willing to lie to police in an effort to prevent discovery of illicit substances hidden on her person, such that any denial by the accused in that regard could not be accepted without verification.

[57] That leaves, for determination, the question of whether the resulting strip search was conducted in a reasonable and Charter compliant manner, having regard to the considerations outlined in R. v. Golden, supra. In that regard:

• The relevant strip search in this case was conducted at the police station.
• In my view, the strip search was conducted in a manner that ensured the health and safety of all involved. In particular, the search was conducted in a sheltered and confined area, with walls and furniture, and McCann was permitted to remove and restore her own clothing, in her customary manner.
• There was no direct evidence indicating that the strip search was authorized by a police officer acting in a supervisory capacity. However, some indication of that was provided indirectly by Constable Grabowski, who concluded her testimony by indicating that she had reported back to the officer-in-charge, confirming that the strip search had revealed the presence of no additional contraband.
• The sole police officer conducting the strip search was of the same gender as Ms McCann.
• The number of police officers participating in and/or present for the strip search was no more than reasonably necessary in the circumstances. Again, the strip search was conducted by Constable Grabowski alone, with no other officers present in the search room. It accordingly was impossible for the strip search to have been carried out by a lesser number of officers.
• The relevant strip search certainly was conducted with the “minimum of force necessary”, as no force whatsoever was applied to Ms McCann during the course of the search. Again, she was permitted to remove and restore her own clothing, at the request of Constable Grabowski. There was no evidence to indicate or even suggest that Constable Grabowski touched Ms McCann in any way at any point during the search.
• In my view, the strip search was carried out in a private area, such that no one other than the individuals engaged in the search, (Constable Grabowski and Ms McCann), were able to observe the search. In particular, Constable Grabowski and Ms McCann were alone in the room, the door was closed and, for the reasons outlined above, I have accepted Constable Grabowski’s testimony that the search was conducted in an area of the room that was beyond the view of the small door window. Nor was there any evidence to suggest that anyone made any attempt to look through that window during the course of the strip search. Although the strip search was being recorded on video by operating cameras in the room, there was no evidence to suggest that the video feed or resulting recording has been viewed by anyone.
• The evidence satisfies me that the strip search was carried out as quickly as possible, particularly insofar as each item of Ms McCann’s clothing was removed and restored, after inspection, and after visual inspect of Ms McCann’s body, within a 5-7 minute interval. Moreover, for the reasons outlined above, I have accepted Constable Grabowski’s testimony that the accused was permitted to remove and restore her upper clothing before the same process was followed in relation to the accused’s lower clothing, such that Ms McCann was never completely undressed at any one time.
• Only a visual inspection was carried out in relation to Ms McCann’s genital and anal areas, (and the rest of the accused’s body). Again, Constable Grabowski did not touch the accused at all during the course of the strip search.
• The visual inspection carried out by Constable Grabowski did not reveal the presence of any weapon or evidence in a body cavity, (or anywhere else on the accused’s person for that matter), making it unnecessary to consider whether the accused was given the option of removing such an object herself. For the reasons outlined above, I also have rejected Ms McCann’s assertion that she was obliged to remove a tampon without being given a replacement. However, even if one had existed, Constable Grabowski indicated that she would have permitted the accused to remove it herself, and in the account presented by the accused, she herself removed the alleged tampon.
• The last relevant consideration outlined in R. v. Golden, supra, focuses on whether a “proper record” was kept of the reasons for the strip search, and the manner in which it was conducted. In this case:
  • There was no evidence of any contemporaneous document expressly indicating that Ms McCann was subjected to a strip search for a specific reason. However, Constable Grabowski’s notes did record, inter alia, that the accused was brought to her by Constable Clarke; that the accused “denied having anything”; that the accused then was “searched @ cruiser”; that the search led to discovery of the two baggies of methamphetamine and currency at locations specified in relation to the accused’s bra and breasts; that the accused was “transported back to HQ”; and that, after arrival there, Ms McCann was “placed in [the] search room” and a “strip search conducted”, leading to “nothing more [being] found”. In other words, there is no record that expressly “connects the dots” between Ms McCann’s denial of having anything on her person, the results of the “pat and frisk” search that proved that denial false and demonstrated the accused’s willingness to secret illicit drugs on her person, and the decision to conduct a strip search of Ms McCann once she and Constable Grabowski arrived back at the police station. In my view, however, the reason for the strip search was clearly implicit in the contemporaneous notes and “record” created by Constable Grabowski.
  • A proper record of the manner in which the strip search was conducted was created by the operating cameras recording what was happening in the search room at the relevant time. As noted above, there was no evidence to suggest that record was requested, and it was not presented at trial. However, Constable Grabowski’s testimony concerning the existence of that record was not challenged in any way.

[58] Having regard to all of these mandated considerations, I find that the strip search of Ms McCann was conducted in a manner that was Charter compliant.

[59] More generally, I therefore find there was no constitutional infringement of Ms McCann’s section 8 Charter right to be free from unreasonable search and seizure, as far as the strip search carried out at the police station is concerned.

CONSEQUENCE OF CHARTER BREACH DETERMINATIONS

[60] As I have found no breach of the section 7 or section 8 Charter rights of Ms McCann, consideration of how s.24(2) of the Charter otherwise may have applied in the event of a breach is unnecessary and inappropriate.

Conclusion

[61] For the reasons set out above, the Charter application brought by Ms McCann is dismissed, and the Charter accordingly has no bearing on the admissibility of any of the evidence relied upon by the Crown.

Justice I.F. Leach

JUSTICE I. F. LEACH

Released: February 7, 2017

[^1]: In saying that, I am nevertheless mindful that the onus effectively may be reversed in relation to certain aspects of the relevant Charter analysis that may be required. For example, as noted below, warrantless searches are ordinarily inconsistent with s.8 of the Charter, and prima facie unreasonable under s.8, such that a party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. Similarly, the Crown bears the onus of proving the legality of a strip search, where its reasonableness is challenged. [^2]: In her testimony, Ms McCann confirmed that there were “a lot of people coming and going” from her apartment on Cobourg Street, and “quite a few people” staying in the residence with her, around the time of the search warrant’s execution. She said those people included two individuals that were there on a more permanent basis and contributing to the rent, (Mike Killian and Spencer Powers), as well as a female named Josey Morris, but also others who stayed from time to time without paying rent as they “couldn’t find a job”. Ms McCann nevertheless also confirmed that she was the only occupant of the residence whose name was on the apartment lease over the course of its two year duration. [^3]: In the course of submissions, defence counsel rhetorically questioned how Constable Clarke would notice that when Sergeant Taylor apparently failed to do so, and implied that was an important inconsistency suggesting that one or both officers should be disbelieved. However, the submission ignores the reality that Constable Clarke was standing behind and to the side of Ms McCann when he raised her, whereas Sergeant Taylor approached Ms McCann from the front and had a different perspective. It also ignores Sergeant Taylor’s testimony, (described below), that he deliberately was trying not to look at Ms McCann’s exposed breast. Moreover, Sergeant Taylor was never asked whether he had noticed any such object protruding from the left side of the accused’s brassiere. [^4]: Notwithstanding that assertion, and the reality that methamphetamine was found on her person in the residence where she admittedly lived, Ms McCann simultaneously and firmly denied under oath that methamphetamine was kept in her apartment; testimony which in my view further undermined her credibility, consistency and reliability. [^5]: In that regard, I specifically reject, for similar reasons, defence counsel’s suggestion that, if part of a plastic baggie became visible to Constable Clarke at the time the accused’s left breast was exposed, it necessarily means that Constable Clarke was responsible for that by intentionally touching the accused’s breast in the manner alleged. [^6]: Again, see authorities such as Eccles v. Bourgue, supra; R. v. Genest, supra; R. v. Gimson, supra; R. v. Cornell, supra; and R. v. Pan, supra.