COURT FILE NO.: CR-16-9-378-0000

DATE: 20180201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNI BOEKDRUKKER

Accused

E. Gilman, for the Crown

J. Collins, for the Accused

HEARD: December 18 to 20, 2017

nakatsuru J.

[1] Ms. Boekdrukker is charged with trafficking in cocaine on November 7, 2014, to an undercover officer. She also sold cocaine to the same undercover officer on November 26, 2014. That same day the police carried out a search pursuant to a warrant at 26 Underhill Drive, unit 1006, the residence of Ms. Boekdrukker. Inside, they found more cocaine, along with hash, marijuana, psilocybin, and cash. More charges resulted. The police then arrested Ms. Boekdrukker and took her to a police station, where they conducted a strip search.

[2] Ms. Boekdrukker brings a Charter application to stay the proceedings or to exclude the evidence seized by the police on November 26 after their searches of her person and her residence. She submits that:

1. Her s. 8 right to be free from unreasonable search and seizure was violated when the search warrant was not shown to her or left in her residence;

2. She was wrongfully strip-searched; and

3. Her right to counsel under s. 10(b) was violated. A blended Charter application and trial was conducted. Ms. Boekdrukker testified solely on the Charter application.

[3] In many respects, the facts are straightforward. On November 7, 2014, D.C. Cilia, an undercover officer on the Toronto Drug Squad, called a suspected cocaine trafficker, who turned out to be Ms. Boekdrukker. They arranged a purchase near 26 Underhill Drive, where Ms. Boekdrukker exchanged a quantity of cocaine for $600. On November 26, 2014, D.C. Cilia set up another undercover purchase. In addition, the police obtained a Controlled Drugs and Substances Act search warrant for Ms. Boekdrukker’s address. D.C. Cilia purchased more cocaine for $540. The police then arrested Ms. Boekdrukker in D.C. Cilia’s car. The members of the Drug Squad conducted the search of her residence as Ms. Boekdrukker was transported by members of the TAVIS unit to 33 Division to be processed.

[4] Let me first address the issue of how the search warrant was executed.

A. SEARCH WARRANT NOT BEING SHOWN OR LEFT IN THE RESIDENCE

[5] In this case, there is no challenge to the search warrant itself. Rather, the focus is on how the search took place. The manner of search must be reasonable in order to be constitutional. The applicant submits that there were three shortcomings in how the search warrant was executed:

1. The police did not have the search warrant in their possession at the time of the search;

2. The police did not show Ms. Boekdrukker the search warrant when she asked to see it upon her arrest; and,

3. The police did not leave a copy of the search warrant in the residence after they finished the search and left.

[6] There are some factual findings that I must make before analyzing these alleged breaches. As synopsized, D.C. Cilia arranged an undercover purchase of cocaine on November 26. Prior to that, the police had obtained a search warrant for the Underhill Drive address. D.C. Bowles, the affiant for the warrant, testified that he had brought the warrant with him. While he is not sure exactly where he had put the warrant in the car, he was certain it was in the car. He was certain he had the warrant at the scene. However, he did not take the warrant up to the residence when it was searched. He further admitted that he did not leave a copy of the search warrant in unit 1006 when the police completed their search as was his practice. He testified that he took full responsibility for his mistake.

[7] The defence questions whether D.C. Bowles ever brought the search warrant with him. The defence points to the uncertainty in the officer’s testimony, a purported exchange between the Ms. Boekdrukker and D.C. Tughan upon her arrest that suggests the warrant was not there, and the fact that no one left a copy of the warrant as support for the inference that D.C. Bowles did not have the search warrant with him during the search.

[8] I will deal with the conversation between Ms. Boekdrukker and D.C. Tughan shortly. At this point, based upon the whole of the evidence, I accept D.C. Bowles’ testimony that he had the warrant when the search was conducted. He was a candid and honest witness. It also makes sense that he would take the warrant from the police briefing to the place of the search. Despite him not making a note of it, it is such standard procedure that it would be surprising if the officer did not bring it. The fact that D.C. Bowles could not exactly recall if he put it in his duty bag is simply an understandable lapse in memory given the passage of time. Therefore, I find that the officer had the search warrant during the search, albeit in his car parked near the residence.

[9] The defence, however, still argues that the law was not complied with. The defence relies upon s. 29(1) of the Criminal Code. That section states:

It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

[10] In this case, D.C. Bowles did not have the search warrant physically with him when the team executed the warrant. It had been left in his car. While this may seem on its face to be a breach of the section, the majority decision in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, is a complete answer to this argument. In Cornell, the Emergency Task Force (ETF) conducted a hard entry of a home in executing a search warrant. None of the ETF members had the search warrant with them. However, the detective in charge of the investigation had a copy of the warrant and he attended the residence within four minutes of it being secured. Cromwell J., speaking for the majority, found that it was sufficient for the purposes of s. 29(1) that a member of the police team had it with them. It was not necessary for those initially going in to search to have the warrant. The court came to this conclusion by taking a purposive interpretation of the provision as applied to a situation where a search is conducted by multiple officers.

[11] I appreciate that in Cornell the detective actually brought the warrant onto the premises a few minutes after the search began. Indeed, he showed it to an occupant who returned to the premises during the search. In this case, D.C. Bowles left the warrant in his car. However, it was readily accessible to him. There was nobody in the apartment when the police entered to search it. No one returned to the apartment during the search. I have no doubt that if someone was present or if someone asked to see the search warrant, the police team would have been in a position to readily retrieve and show it.

[12] Cromwell J. held at para. 43 of Cornell that the purpose of s. 29(1) is to allow the occupant of the premises to be searched to know why the search is being carried out, to allow the assessment of his or her legal position and to know as well that there is a colour of authority for the searching making forcible resistance improper. Here the members of the Toronto Drug Squad could have given effect to these purposes had there been an occupant, since the search warrant was nearby. In my view, the spirit of the law if not the letter of it was fulfilled. Although undoubtedly it is good practice that an officer has physical possession of a search warrant when a search warrant is being executed, the factual circumstances of this case do not render the search unreasonable. This case is quite unlike the situation in R. v. B. (J.E.) (1989), 1989 CanLII 1495 (NS CA), 52 C.C.C. (3d) 224 (N.S.C.A.), where the police left the search warrant back at the police station.

[13] However, I find that the police did not abide by a different aspect of s. 29(1). This is the applicant’s second main submission on this issue. I find that Ms. Boekdrukker asked to see the search warrant and the police failed to show it to her. Ms. Boekdrukker testified that when she was arrested, she was told by the arresting officer, D.C. Tughan, that the police were going to search her apartment. The police obtained her keys to her residence for that purpose. D.C. Tughan agreed that he told Ms. Boekdrukker of the impending search. However, he testified that he did not recall Ms. Boekdrukker ever asking to see the search warrant. Thus, there is a conflict in their evidence that I must resolve.

[14] Let me say this about Ms. Boekdrukker’s overall testimony. I found her to be an honest and straightforward witness. Despite the obvious interest she has in the outcome of these applications, her candor was impressive. When cross-examined by the Crown on the issue of her state of mind and credibility, she frankly admitted to being a cocaine dealer and having had been one for some time. I note that Ms. Boekdrukker had never been arrested before. Her answers about what happened to her that evening and how she felt at the time had the ring of truth, particularly for someone who had never before been arrested and was unfamiliar with police processes. She was not impeached in cross-examination and the main points of her testimony remained consistent.

[15] There was one aspect of her testimony I could not accept. I have referred to this earlier in my reasons. Ms. Boekdrukker testified that when she asked to see the search warrant, D.C. Tughan said the warrant was still three hours away. D.C. Tughan could not recall the conversation he had with her, but he said that he definitely would not have said that the warrant was three hours away as this would have made no sense. I agree. It makes no sense. First of all, the search warrant had already been obtained and all the officers testified that they had seen the search warrant at the briefing. It would make no sense for D.C. Tughan to falsify that. He could have simply told her the truth. Secondly, as he testified to, it made no sense to choose an arbitrary three hour period given that search warrants can readily be obtained much faster. I find that Ms. Boekdrukker is mistaken about this conversation. She was surprised by the arrest. She had been placed on the ground and handcuffed. She had never been arrested before. I find that her recollection about this part of the conversation is not accurate. She may have misinterpreted what was said to her.

[16] That being said, I find that Ms. Boekdrukker did ask to see the search warrant. When told that the police were going to search her home, a natural response would have been to see the search warrant. She was honest about this. It was most plausible. It was not impeached. Nor was it specifically contradicted by D.C. Tughan who could not specifically recall one way or the other this request by the accused. I find that the officer did not categorically deny that Ms. Boekdrukker may have asked this. The officer only categorically denied the accused making the three hour comment. It also makes sense to me that if D.C. Tughan did not have the warrant because D.C. Bowles had left it in the car, the former would not have been in a position to immediately produce it upon her request.

[17] Thus, in my opinion, s. 29(1) was not complied with. It was feasible for the police to show Ms. Boekdrukker the search warrant. She asked to see it. She was under arrest, cooperative, and compliant. There was no urgency in removing her from the scene. In fact, she was not removed immediately. The search warrant was in D.C. Bowles’ car and could have been readily retrieved.

[18] I am sensitive to the fact that the arrest was taking place in the open and others may have witnessed it. This puts a premium on executing the search warrant quickly. However, on these facts, this did not mean that showing her the valid authority to conduct the search of her home would somehow endanger the safety of the officers or undermine the integrity of the search. The fact that D.C. Tughan believed it was fine to tell Ms. Boekdrukker that the police were going to search her premise and obtained the key from her shows that these concerns were really non-existent in this case. There was nothing unfeasible in producing the search warrant for her when requested.

[19] I recognize that this duty to produce a search warrant has usually been extended to the occupants found in the premise to be searched. I also appreciate that it would be unduly onerous to require the police to find the owner or resident of a premise who is not present in order to show that person a copy of the valid search warrant. However, I note that s. 29(1) on its face is not limited to occupants. Further, the duty on the police is only triggered by a request and is limited by feasibility. Finally, the facts of this case reveal a close nexus between the person requesting to see the search warrant and the premises to be searched. The police knew that Ms. Boekdrukker was the resident of the apartment. She appeared to have just left the premises. She was geographically close by when she made her request. Temporally, the warrant was to be executed immediately thereafter. She was about to be taken away from the scene and was in no position to otherwise determine the validity of the search. I find that the police obligations under s. 29(1) were, on these facts, owed to Ms. Boekdrukker.

[20] It is not every variance with a police practice, a minor defect in the search warrant, or a flaw in process that will amount to a s. 8 violation. However, here the police violated a fundamental requirement of the law. Ms. Boekdrukker asked to see the search warrant before it was executed, and the police did not show it to her. Thus, I find that s. 8 was violated: see R. v. Bohn, 2000 BCCA 239, 145 C.C.C. (3d) 320; R. v. Chen, 2016 BCCA 506, [2016] B.C.J. No. 2719 at para. 36; R. v. Al-Fartosssy, 2007 ABCA 427, [2007] A.J. No. 1446 at para. 69; cf. R. v. Patrick, 2007 ABCA 308, 227 C.C.C. (3d) 525, affirmed on other grounds 2009 SCC 17, [2009] S.C.J. No. 17.

[21] Let me turn to the final argument raised by the defence. It is submitted that the police violated s. 8 by not leave a copy of the search warrant behind in the residence after finishing the search.

[22] D.C. Bowles admitted this was a mistake. He confirmed it was police practice to leave a copy of the search warrant behind. Despite his testimony, the Crown submitted, quite properly in my view, that police practice does not make something a legal requirement. There is no statutory requirement that the police leave a copy of the search warrant in the premise. Neither Crown nor defence counsel could provide any authority on this issue.

[23] The Crown pointed out that Parliament expressly provided such a provision for telewarrants but not for other search warrants. Section 487.1(8) of the Criminal Code requires a peace officer executing a warrant of an unoccupied place or premise to suitably affix a facsimile of the warrant in a prominent place within the place or premises. The Crown submits that failure to enact a similar provision for other search warrants means that there is no legal requirement for the police to take comparable steps.

[24] I am unpersuaded. I note that Parliament also enacted s. 487.1(7), which requires the police to give a facsimile of the telewarrant to any person present and ostensibly in control of the place or premises. No such statutory provision exists for regular search warrants. Yet the law that a police officer should produce and exhibit the search warrant to permit inspection of it is ancient. See Wah Kie v. Cuddy (Decision No. 2), (1914) 1914 CanLII 635 (AB CA), 23 C.C.C. 383 (Alta. C.A.) at para. 27; R. v. Sloan (1891), 18 O.A.R. 482 (C.A.).

[25] In my opinion, the common law mandates that police officers leave a copy of the search warrant in an unoccupied place or premise that they have searched. I refer to the comment of Lamer C.J. in R. v. K.G.B, 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 at para. 54 where he affirmed the statement of Lord Donovan, dissenting in Myers v. Director of Public Prosecutions, [1965] A.C. 1001 (H.L.), at p. 1047, that "[t]he common law is molded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds" Since there is no obligation to notify or show search warrants to interested persons not found in the premises prior to conducting a search (unless s. 29 is triggered) the minimum the police must do after the search is to leave a copy of the search warrant behind when they are finished. Otherwise, a person returning to their place or premise would have no idea what had happened. Just imagine the distress caused when a resident or occupant returns, finding their premises upended and items missing without any indication who was responsible. Even if advised by someone that the search was carried out by the police, the individual will have difficulty satisfying themselves of the legality of the police search and seizure without a copy of the search warrant. It seems obvious to me that even if the requirement to leave a search warrant in an unoccupied place or premise is not found in the Criminal Code, the common law must demand it.

[26] A reasonable search is one conducted according to law. This also requires compliance with that law after a search warrant is executed: see R. v. Tsekouras, 2017 ONCA 290, [2017] O.J. No. 1768. I find that this search was not.

B. THE STRIP SEARCH

[27] After she was arrested, Ms. Boekdrukker was taken to 33 Division by P.C. Joanne Bortoluss and her partner, P.C. Fred Teatero. The two officers were members of the TAVIS unit and were not part of the investigation of Ms. Boekdrukker by the Toronto Drug Squad. They had been detailed just that evening to transport Ms. Boekdrukker from the scene to 33 Division, where she was to be processed and taken to a show cause hearing in the morning. A video of Ms. Boekdrukker’s arrival and parade at 33 Division was put into evidence.

[28] There is no dispute that it was appropriate to strip search Ms. Boekdrukker. She had been arrested on drug offences and was going to be placed in a bullpen with other prisoners before she went for her bail hearing.

[29] There is further no issue with how P.C. Bortoluss strip searched Ms. Boekdrukker. The officer followed the appropriate protocol and was very professional. Ms. Boekdrukker herself was polite and cooperative. The officer did not find anything as a result of the strip search.

[30] The issue is really with the facility at 33 Division used to conduct the strip search. There is no door to the vestibule or alcove where the strip search was conducted.

[31] This is what happened when Ms. Boekdrukker arrived at 33 Division. She was paraded before the sergeant in charge of the station. The sergeant authorized a Level 3 search (a strip search) and pointed to the area where it was to be conducted. P.C. Bortoluss had never conducted a strip search at 33 Division as she was usually deployed in a different area of the city. The vestibule the sergeant indicated is just off the parading room area. The parading room itself where a newly arrived detainee to the police station is first brought, is just adjacent to the sally port of the police station. P.C. Bortoluss took Ms. Boekdrukker to this vestibule. The vestibule had three concrete walls but no door. There was no means to close off the area. While it was not immediately visible to those in the parading area, it was still very close to the parading area. On the video which was filmed in the room with the parading desk, I can hear P.C. Bortoluss and Ms. Boekdrukker’s voices as the strip search was taking place. No doubt they could hear what was going on in the parading area.

[32] P.C. Bartoluss did not have an exact recall of the station’s layout. Ms. Boekdrukker testified that the place where she was strip searched was an area enclosed by three walls with an open entrance immediately adjacent to the parading area. Both witnesses drew diagrams of the area. I accept Ms. Boekdrukker’s description over that of P.C. Bartoluss. Ms. Boekdrukker’s recollection was much better. She had every reason to remember the place. The Crown called no other witness to testify to the layout of this area.

[33] Strip searches that P.C. Bartoluss had conducted at other police divisions were always done in a room with a door. However, she testified that Ms. Boekdrukker had privacy. I accept the officer’s testimony that there was no one at or near any entrance in a position to see the strip search. In addition, I have seen the video. There were three male officers in the parading area. None came close to the entranceway where the strip search was taking place. Indeed, on the video, the sergeant called P.C. Teatero to step away from the area of the entranceway of the strip search to a location closer to the parading desk, obviously in order to ensure that privacy was given.

[34] The leading case on strip searches is R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. Strip searches must be conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible. In Golden, Justices Iacobucci and Arbour found at para. 101 that the guidelines for strip searches in the English Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (“P.A.C.E.”) to be in accord with s. 8 of the Charter. One requirement of that law is that 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.

[35] In my opinion, when it comes to strip searches, privacy is a contextual concept. For instance, if the exigency of the situation requires a strip search to be conducted in the field, adequate privacy will depend upon the physical circumstances present. In such a scenario, it may not be possible to afford the detainee absolute privacy. For example, the privacy of an enclosed room may not be available. This does not mean that the strip search cannot be conducted or that reasonable privacy cannot be afforded. Another contextual factor is the degree of intrusion into personal dignity and privacy a specific search involves. If a strip search does not involve the complete removal of clothing, a lesser degree of privacy may suffice.

[36] Conversely, just because affording privacy may be difficult does not mean that the police can be indifferent to the privacy needs of the individual being strip searched. Reasonable efforts must be made to afford adequate privacy to the individual that are consistent with the existing circumstances.

[37] In this case, I find that no one aside from P.C. Bartoluss saw Ms. Boekdrukker being strip searched. I further find that all the officers present made good faith efforts on the night in question to give Ms. Boekdrukker privacy. Indeed, the sergeant was careful to tell Ms. Boekdrukker that the area she was going to be taken to was being audio recorded, but there was no video camera and no one was going to see her. According to Ms. Boekdrukker, P.C. Bortoluss also stood in front of her as she removed her clothes in what appeared to be an effort on the officer’s part to shield her from view.

[38] While I acknowledge these efforts, in my opinion, Ms. Boekdrukker’s strip search was not conducted in a private area. Ms. Boekdrukker testified that during the strip search she felt extremely uncomfortable and was worried that another police officer might see her. I agree with the Crown that on a s. 8 analysis, Ms. Boekdrukker’s subjective feelings are not ruling. I must take an objective view of the privacy that was given to her. But taking that objective view, I find that the physical layout of the area in which Ms. Boekdrukker was searched would reasonably affect a person being strip searched in a significantly detrimental way. Here, the detainee is being asked to remove her clothes with an open entranceway. Despite being given assurances from the sergeant, there is no one standing guard at the entranceway to make sure no one can come see her, even inadvertently. The detainee can hear what is going on in the immediately adjacent room. There are male officers in that area. There is no barrier whatsoever between the strip search location and anyone who may be passing by. Even without hearing from the detainee, anyone in such a situation would reasonably suffer heightened anxiety and a significant loss of dignity during the strip search.

[39] This is something that can be easily avoided. The search was carried out in a secure police station. It should not be difficult to plan and structure such a facility to accommodate such operative needs as strip searches. Indeed, police stations are precisely the places where the maximum amount of privacy can and should be afforded to a detainee being strip searched. I ask rhetorically, if one cannot get full privacy at a police station, where else can one expect to get it?

[40] I appreciate that the problem is caused by the physical layout of 33 Division. I am also keenly aware that my judicial ruling should not necessitate expensive renovations or retrofitting of 33 Division or other police stations where similar difficulties may exist. However, quite frankly, the solutions are simple. A trip to a hardware store and a quick installation of a curtain over the entranceway of the vestibule where strip searches are conducted can easily solve this problem. It seems to pose no difficulties for hospitals or clinics. Where doorways are not suitable or practicable, curtains are placed so that they can easily be drawn around a patient when an examination occurs. I see no reason why 33 Division cannot do something analogous. In the meantime, if budgetary issues or motivation proves to be a temporary impediment to installing such a cheap and viable solution, I am sure that strip searches could take place in a different room of the police station, equipped with a door that can be closed.

[41] It is not my intent to sound flippant. I fully recognize that save for this issue, Ms. Boekdrukker was treated professionally and courteously. I further appreciate that for some, I might appear to be making a mountain out of a mole hill. However, to judicially sanction the manner in which Ms. Boekdrukker was searched would erode the privacy and dignity interests underlying s. 8. It would also represent a failure to fully recognize the intrusive nature of strip searches. The latter was highlighted by the Court in Golden where they said (at paras. 89-90):

The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee's experience of being strip searched. Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such as pat or frisk searches. As was pointed out in Flintoff, supra, at p. 257, "[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power".

Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", "demeaning", "upsetting", and "devastating" …. Some commentators have gone as far as to describe strip searches as "visual rape"... Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault (Lyons, supra, at p. 4). The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse....

[42] While these comments were made in the context of the threshold test before strip searches are allowed, they are applicable to the manner in which they are conducted. On the facts of this case, a vestibule open to view is an unnecessary and obvious gateway for heightened anxiety at the very least and emotional re-traumatization at the worst.

[43] I will also set out the relevant guidelines of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, Annex A, of the P.A.C.E. adopted in Golden that in my view supports this finding:

(b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex (see Annex L) except an appropriate adult who has been specifically requested by the detainee.

(d) the search shall be conducted with proper regard to the sensitivity and vulnerability of the detainee in these circumstances and every reasonable effort shall be made to secure the detainee’s co-operation and minimize embarrassment.

[44] Ms. Boekdrukker was not searched in an area where she could not be seen. Proper regard was not given to her sensitivity and vulnerability. More could have been done to minimize her embarrassment. Consequently, the police violated her s. 8 rights in this additional manner.

C. RIGHT TO COUNSEL

[45] The defence submits that Ms. Boekdrukker’s right to counsel as guaranteed by s. 10(b) was violated in two respects. Firstly, the police failed to facilitate her request to speak to a lawyer at the first reasonably available opportunity. Secondly, when they permitted her to speak to duty counsel, they did not allow her to do so in private.

[46] Let me summarize what occurred on the night Ms. Boekdrukker was arrested. Team four of the Toronto Drug Squad, under the supervision of Detective Hutchings, was involved in the undercover purchase and subsequent search of Ms. Boekdrukker’s home. There were six members of the team involved. At approximately 7:16 p.m., the purchase was completed and D.C. Tughan arrested Ms. Boekdrukker assisted by D.C. Dick. Prior to setting up this under cover purchase, D.C. Tughan had stopped by the TAVIS unit and asked for their help in transporting the accused, who was going to be arrested that evening. Consequently, P.C. Bortoluss and her partner in the TAVIS unit arrived after being dispatched and took custody of Ms. Boekdrukker at 7:24 p.m.

[47] At 7:26 p.m., P.C. Bortoluss advised Ms. Boekdrukker of her right to counsel. When asked if she wanted to call a lawyer, Ms. Boekdrukker replied that she did not know a lawyer. Duty counsel was explained to her and Ms. Boekdrukker asked if she could speak to duty counsel until she got a lawyer. When told that she could, she asserted her desire to speak to duty counsel.

[48] At 7:35 p.m. the police officers and Ms. Boekdrukker left the scene to go to 33 Division. They arrived at 7:43 p.m. They had to wait their turn to enter the sally port and, at about 7:59 p.m., Ms. Boekdrukker was paraded before the sergeant in charge of the station. The sergeant conducted the usual inquiries of Ms. Boekdrukker and advised her of her ability to contact counsel at the station. The strip search was conducted which finished around 8:10 p.m. P.C. Bortoluss then took Ms. Boekdrukker to a holding room in the Youth and Family Violence office and left her in a secure room. P.C. Bortoluss left 33 Division at approximately 9 p.m.

[49] In the meantime, the officers of team four headed up to unit 1006, 26 Underhill Drive and commenced the search at approximately 7:23 p.m. There was nobody in the residence. The search was completed by 9:21 p.m. and the team then returned to 33 Division with their seizures.

[50] At 11:10 p.m., D.C. Bowles called Ms. Boekdrukker’s boyfriend for her. At 11:20 p.m., Ms. Boekdrukker spoke with duty counsel. D.C. Bowles made no notes of the times of these calls and did not have a clear recollection of them. His memory was refreshed from two other documents presented to him by the Crown in examination-in-chief. When asked in cross-examination why Ms. Boekdrukker was required to wait from 7:43 p.m. to 11:20 p.m. to speak to a lawyer, D.C. Bowles replied that he could not answer that question. The only other officer who gave evidence regarding any explanation for the delay in facilitating access to counsel was P.C. Bortoluss. She testified that she did not facilitate a call to counsel since as transport officers, they do not do that sort of task. In her view, investigating officers were responsible for that. All she did was to transport the accused. She admitted that she did not tell any officer at the station that Ms. Boekdrukker wanted to speak to duty counsel right away. For P.C. Bortoluss, it was a police obligation to facilitate contact with counsel rather than her individual obligation.

[51] Ms. Boekdrukker testified that she was left in the small room. No one permitted her to contact a lawyer until D.C. Bowles arrived. Outside her locked room, there was a large open-plan room with desks and computers. There was nobody out in that room until the officers involved in her arrest came back. She could hear their voices even with the door closed. When D.C. Bowles entered her room, he told Ms. Boekdrukker she could have a phone call, and she asked to speak with her boyfriend. She spoke with her boyfriend for a couple of minutes. She then heard the telephone ring and D.C. Bowles again handed her the telephone and said it was duty counsel. Ms. Boekdrukker testified that the telephone she used was a landline and it was pulled into her room by the officer. The door was closed but left slightly ajar so that the phone cord could go through it. She testified that given the length of the cord, she talked to duty counsel by the slightly ajar door. She could hear the officers talking outside although she could not see them. The duty counsel that she spoke to asked her if she had privacy. Ms. Boekdrukker replied that the police could hear her and it was not private. Duty counsel then advised her to simply answer her questions going forward with a yes or no.

[52] I accept Ms. Boekdrukker’s evidence on this issue. As I have already indicated, I found her to be credible and mostly reliable. She was not impeached in cross-examination regarding this issue. There was no contradictory evidence from the police officers. The narrative that she related was very plausible. Therefore I find as a fact that the events she testified to are what actually happened during this period of time.

[53] The first issue is whether the delay in facilitating Ms. Boekdrukker’s access to counsel was reasonable in the circumstances: see R. v. Taylor, 2015 SCC 50, [2014] 2 S.C.R. 495. In my view, it was not.

[54] The Crown relies upon the line of authority that has permitted the police to delay the s. 10(b) implementation duties when the police are in the process of obtaining and executing a search warrant. This line of authority is explained by Code J. in the case of R. v. Learning, 2010 ONSC 3816, 2010 ONSC 153, 258 C.C.C. (3d) 68, at paras. 71 to 76. However, that line of authority can easily be distinguished from the case at bar. In those cases, judges have held that when the police are in an urgent situation where there are legitimate concerns for officer or public safety and/or for the loss or destruction of evidence, these may prove to be exigent circumstances that justify a temporary suspension of Charter rights. These cases often involve the potential for violence or firearms. In order to safely and reasonably balance these concerns, at times judges have found it reasonable for the police to delay access to counsel until a search warrant could be obtained and properly executed.

[55] No such concerns arise in this case. The police already had the search warrant in their possession before they arrested Ms. Boekdrukker. Ms. Boekdrukker was told they were going to search her unit. The police then quickly entered and secured the unit even before Ms. Boekdrukker arrived at 33 Division. There was no one in the unit that the police searched. There are no other factual circumstances that raise any safety or investigative concerns once the unit was secured. While some of the officers testified to general concerns in executing search warrants to avoid a loss of evidence, none of the officers acknowledged this was a motivating concern here in terms of the failing to facilitate access to counsel. Even if the police properly delayed access to counsel in order not to compromise the search, I see no reason why access to counsel was delayed beyond 7:26 p.m. once the police gained access to the unit and found it unoccupied.

[56] Looking at the whole of the circumstances, the police failed to give Ms. Boekdrukker access counsel as soon as practicable or at the first reasonably available opportunity. First of all, the police knew in advance that they were going to arrest Ms. Boekdrukker and then conduct the search. Indeed, D.C. Tughan had made prior arrangements to have TAVIS officers involved in her transport. This is not a case where an arrest or a search arises unexpectedly with little time to plan. Secondly, this was not a minor delay. It took nearly 4 hours from the time she expressed her desire to speak to a lawyer and almost 3.5 hours from her arrival at 33 Division to speak to duty counsel. I acknowledge that there is no inflexible time requirement in facilitating access to counsel. However, the longer the delay, the greater the explanation from the Crown that is needed. In this case, I find there is no justifiable explanation for the delay. There is no evidence that the delay could be attributed to difficulty in contacting counsel. P.C. Bortoluss took the view that it was not her responsibility. The sergeant in charge of the station was not told the accused wanted to speak to a lawyer, he made no further inquiries, and he took no steps to facilitate it. Six members of the Toronto Drug Squad were involved in this investigation. D.C. Tughan, who was the team leader, took pains to ensure they had the assistance of TAVIS in transporting the accused but provided no direction or guidance to these officers about facilitating access to counsel. The supervising detective was on scene as well. I only mention this since this shows that the delay was not a misstep resulting from a lack of experience or resources on the part of the police. Even though there were six officers involved in the search of a single bedroom unit, none did anything to ensure that Ms. Boekdrukker’s constitutional right to counsel was respected. A phone or radio call back to the TAVIS officers or the station to advise that the apartment was secure would have taken little time or effort. If it took an investigative officer to make sure that the right to counsel was facilitated (which I do not accept since I agree that this is the responsibility of all the police officers involved), I see no reason why an officer could not have left the search scene to attend at 33 Division to see that this was done. Indeed, the arresting officer could have gone directly to 33 Division rather than taking part in the search. The conclusion that the police just simply forgot about Ms. Boekdrukker’s right to counsel is irresistible. I find that the police were negligent in this regard. It seems to me most likely that D.C. Bowles only contacted duty counsel once the team returned to 33 Division and it occurred to someone that Ms. Boekdrukker had not yet spoken to a lawyer.

[57] Thus, I find there to be a violation of s. 10(b) of the Charter.

[58] Let me turn now to the issue of privacy. The defence must satisfy me on a balance of probabilities that a violation of s. 10(b) took place in this additional way.

[59] First of all, there is no evidence that the police officers overheard the conversation. The defence did not even ask the officers about this. The only evidence on this point comes from Ms. Boekdrukker.

[60] Ms. Boekdrukker was placed alone in a room to speak to duty counsel. The door was, even on her evidence, only slightly ajar. If it was only open enough to have a phone cord go through it, I find that the door was, for all intents and purposes, closed. The police officers could be overheard, but Ms. Boekdrukker did not testify that she could make out the exact words they were saying. As defence counsel submitted, I acknowledge that this was not ideal privacy. However, I find that Ms. Boekdrukker has not proven there was any invasion of her privacy by the police: see R. v. Playford (1987), 1987 CanLII 125 (ON CA), 40 C.C.C. (3d) 142 (Ont. C.A.); R. v. Dempsey (1987), 1987 CanLII 9086 (NS CA), 77 N.S.R. (2d) 284 (C.A.).

[61] While there was no actual invasion of privacy, s. 10(b) may still be breached if Ms. Boekdrukker establishes that she reasonably believed she was not able to retain and instruct counsel in private: R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.) at para. 10.

[62] I find that she has not proven this on a balance of probabilities. I accept that she did not believe she had privacy. However, that belief was not reasonable. Ms. Boekdrukker was in a separate room with the door essentially closed. While she could hear officers speaking outside, she could not see where they were. She gave no evidence to support any belief that an officer was eavesdropping on her. Ms. Boekdrukker was able to speak with duty counsel and receive advice. Although she was asked about her circumstances of privacy, neither Ms. Boekdrukker nor the duty counsel giving her advice ever requested that the police afford her more privacy: see R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319 (C.A.) at paras. 26-27.

[63] The sufficiency of the privacy to consult counsel is a fact-based inquiry based upon the totality of the circumstances. In my view, insisting upon an overly rigorous definition of that privacy may actually serve to undermine the laudable goals of s. 10(b). It is too easy for the police to resort to the excuse that the detainee cannot be given privacy as a reason not to facilitate access to counsel at the time. It should not require near seclusion of the detainee to provide suitable privacy to contact counsel. There are a multitude of ways and places to provide that privacy, especially in this age where smartphones are ubiquitous. Accessing legal advice should be encouraged in all kinds of situations. An inflexible interpretation of privacy would be an impediment to achieving this.

D. STAY OF PROCEEDINGS

[64] In the ways I have explained, Ms. Boekdrukker’s s. 8 and s. 10(b) rights were violated by the police on November 26, 2014. She asks that as a remedy all her charges be stayed. I do not agree that this is the right remedy for these constitutional violations.

[65] It is well established law that the test for a stay of proceedings is strict. A stay is the appropriate remedy only in the “clearest of cases”. Here there is no issue about whether the fairness of the trial is affected. I am dealing with the residual category. Two criteria must be satisfied: (i) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome: and (ii) no other remedy is reasonably capable of removing that prejudice. Where the remedy remains uncertain after consideration of these two factors, then it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits: see Canada v. Tobias, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 at paras. 90 and 92.

[66] I find that the prejudice caused by the police conduct will not be manifested, perpetuated, or aggravated by the trial or the outcome. While the violations were serious, there was no bad faith conduct by the police. A stay is not meant to punish the police for their conduct. Continuing with this trial will cause no unfairness or prejudice to Ms. Boekdrukker. I will explain some of these matters further when I turn to the issue of exclusion of the evidence under s. 24(2). But for now, it is sufficient to say that the circumstances do not warrant a stay. I also point out that the constitutional violations have no direct link to the trafficking on November 7. In my view, this is not one of the clearest of cases calling for a stay of proceedings.

[67] In addition, there is a remedy that is capable of removing that prejudice. This is the exclusion of evidence pursuant to s. 24(2). I will now address that remedy. The application for a stay of proceedings is dismissed.

E. EXCLUSION OF THE EVIDENCE UNDER S. 24(2)

[68] Ms. Boekdrukker submits that the evidence found upon her person and in her residence on November 26, 2014 be excluded, since its admission at her trial would bring the administration of justice into disrepute. Quite properly, the Crown raises no issue about whether the evidence met the “obtained in a manner” requirement of s. 24(2). I find that that the Charter violations are temporally and contextually connected to the evidence at issue: see R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402.

[69] There are three lines of inquiry I will address in my analysis: the seriousness of the Charter infringing conduct; the impact of the violations on the Charter interests at stake; and society’s interest on an adjudication on the merits.

a. Seriousness of the Charter violations

[70] I will first assess the conduct of the police with respect to each breach separately. Then, given the multiple breaches, I will assess their overall seriousness.

[71] With respect to the s. 8 breaches pertaining to the search at Ms. Boekdrukker’s residence, I find one breach minor but the other serious. Let me begin by saying that I accept that D.C. Bowles’ failure to leave a copy of the search warrant in the premises was an honest error. There was no bad faith on his part. Given that D.C. Tughan told Ms. Boekdrukker that they were about to search her place, she would not have been under any confusion about what was going to happen to her home even without having a copy of the search warrant left in her home afterwards. On these facts, this aspect of the s. 8 violation was minor and perhaps even technical.

[72] However, I cannot say the same about the police’s failure to show Ms. Boekdrukker a copy of the search warrant when she requested to see it. The search warrant was nearby in D.C. Bowles’ vehicle. There was no reason why Ms. Boekdrukker could not have been shown a copy of that warrant. I can only find that the police either deliberately did not show it to her or were indifferent to her request, perhaps because the warrant was not immediately at hand.

[73] In addition, the requirements of s. 29 are clear and have been established law for many years, both in the Criminal Code and at common law. This is not something novel or precedent-setting. I expect police officers to be familiar with it. Although Bohn’s s. 24(2) analysis predates Grant, the British Columbia Court of Appeal’s characterized a breach of s. 29 as serious for the purposes of s. 24.

[74] Lastly, with respect to this breach, D.C. Bowles’ minor mistake in not leaving a copy of the search warrant in the premise exacerbates D.C. Tughan’s action not to show Ms. Boekdrukker the warrant when requested. When released from custody to return to her home, she was unable to satisfy her desire to see the legal authority for the search by reviewing a copy of the search warrant left in her home, even ex post facto.

[75] Let me move on to the violation that occurred during the strip search. Here, all the officers involved were aware of the need to provide Ms. Boedrukker privacy. They were polite and professional. Furthermore, nobody other than P.C. Bortoluss saw Ms. Boekdrukker being strip searched. There was no actual invasion of her privacy. This mitigates the nature of the s. 8 violation.

[76] While this could lead some to characterize this as a technical breach, a broader perspective places this violation on the more serious end of the spectrum. While the individual officers involved cannot be faulted on the evening in question, their conduct is more troubling when I assess the violation from a systemic perspective. I accept that some police facilities may have been designed and built at a time when societal and legal sensitivity to things such as strip searches and personal dignity may not have been as well developed as they are today. Further, police services have resource and budgetary constraints. There are many important things in policing that need attention and money. However, it seems to me that when the solution to the problem posed by the vestibule used for strip searches at 33 Division is so simple, there must have been a failure in the system to recognize the existence of this problem and the need to fix it. Although no specific fault should be assigned to P.C. Bortoluss or the officers in the parading room, it is not lost on me that that all these officers were aware that the lack of a doorway was an issue but not something anyone was prepared to do anything about. This is not something that should take a ruling by a judicial officer to rectify. Regardless, for me to characterize this violation as trivial or minor would mean that I will just become part of that problem, not the solution. I do not intend to do so.

[77] Let me turn to the s. 10(b) violation. As noted in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the lack of a connection between a Charter breach and the evidence is a factor to be considered when one gets to the s. 24(2) analysis. Here, while the connection between the violation of s. 10(b) and the evidence is not remote or tenuous, it is still significantly removed from the collection of the evidence, most of which preceded the violation. This should normally reduce the seriousness of the violation. I note that this consideration also affects the searches conducted in this case.

[78] However, in Pino, the same type of violation was held to be serious. In that case, the police unreasonably delayed Ms. Pino’s contact with her lawyer after she asked for the opportunity to do so. The search of the car that led to the discovery of marijuana plants preceded the denial of her right to counsel. Nevertheless, both the trial judge, Paccioco J. (as he then was) and Laskin J.A., speaking for the Court of Appeal, characterized a similar s. 10(b) violation as clear and serious. I thus find the same here. As I have already found, the police officers were seriously negligent in failing to ensure that Ms. Boekdrukker’s request to speak to counsel was facilitated at the first reasonably available opportunity. No officer took responsibility for it. No one seemed to place any priority on this. To be blunt, the phone call to duty counsel seemed like it was an afterthought. While none of the police officers set out to deliberately deny her this right, Ms. Boekdrukker’s right to get timely legal advice fell through the cracks. The police conduct fell significantly short of what can reasonably be expected of them in the circumstances. This violation is serious.

[79] It will not be a surprise, then, that when I look at the multiple violations I find that they are serious. Even if I am incorrect about the seriousness of any one particular violation, this line of inquiry favours exclusion when the violations are assessed cumulatively.

[80] I will note that this case is somewhat unusual, since this is not a situation where one or two officers were responsible for the violations. No one officer deliberately set out to deny Ms. Boekdrukker her rights. I could fairly characterize this situation as one where the Toronto Drug Squad team and the police service in general failed to respect Ms. Boekdrukker’s constitutional rights. I need to dissociate the courts from this type of conduct. The police demonstrated a pattern of indifference and negligence on the night of Ms. Boekdrukker’s arrest. Perhaps such undercover buy operations and subsequent searches have become routine and run-of-the-mill. Perhaps this breeds the type of indifference or failings found in this case. But I must never permit attitudes sculpted by routine and over-exposure to repeated and similar litigation creep into the s. 24(2) analysis and underestimate the seriousness of these violations.

b. Impact on the Charter-protected interests of the accused

[81] The interests protected by s. 8 of the Charter are privacy, personal integrity, and dignity. With respect to the search warrant, the impact on these interests is modest. While the premise to be searched was Ms. Boekdrukker’s home, a place to which a high degree of privacy is attached, the police did have a valid search warrant. No issue has been raised regarding how the search was conducted except for the shortcomings already noted. Ms. Boekdrukker also knew that her home was going to be searched. The failure to leave a copy of the search warrant had a minor effect on her privacy rights. On the other hand, when she was denied the right to see the search warrant, she was denied her right to view the lawful authority the police had for the search.

[82] With respect to the strip search, I appreciate that no one other than the searching officer saw Ms. Boekdrukker removing her clothes. P.C. Bortoluss conducted the search politely, professionally, and according to protocol. All the officers in that booking area were most respectful and attentive to Ms. Boekdrukker. On the other hand, I accept Ms. Boekdrukker’s testimony with respect to how she was feeling. The fact she was cooperative and may have even nervously laughed briefly while being strip searched does not undermine the authenticity of that testimony. Ms. Boekdrukker had never been under arrest before. This was strange and unfamiliar to her. Her being polite and cooperative is in keeping with her testimony that she hoped this would further her being released from custody. I accept that she was anxious and worried about the lack of any barrier in the area she was strip searched. To find anything other than that there was a significant impact upon her privacy and personal dignity interests would simply undervalue her lived experience as a woman detainee who is being forced to disrobe in these vulnerable circumstances.

[83] With respect to the impact on Ms. Boekdrukker’s s. 10(b) interests, I can only follow the conclusions of Laskin J.A. in Pino. Even allowing that Ms. Pino sat alone without access to counsel for over five hours, while Ms. Boekdrukker waited just over three hours, I too find that the impact of this breach was not technical and fleeting. Ms. Boekdrukker was equally vulnerable and needed counsel. The unreasonable delay undermined her 10(b) interests. Thus, the impact was significant.

[84] Taking these violations together, this line of inquiry favours exclusion. These violations had multiple serious impacts. They affected some core interests protected by the Charter rights that were breached by the police.

c. Society’s interest in an adjudication on the merits

[85] This third line of inquiry favours inclusion. The evidence in issue is real evidence and reliable. It is essential to the Crown’s case on the majority of her charges. While the Crown agrees that the case does not involve the hardest of drugs or the largest of quantities, the allegations are more serious than those that would pertain to an addict trafficker. This factor is somewhat mitigated by the fact the decision to exclude the evidence will not end the Crown’s entire prosecution of Ms. Boekdrukker. Exclusion will not affect the charges arising out of the November 7th trafficking to the undercover officer. I also note that for some reason Ms. Boekdrukker has not been charged with trafficking to the undercover officer on November 26.

d. Overall balancing

[86] After balancing these three factors, I conclude that the admission of the evidence would bring the administration of justice into disrepute. Two factors strongly favour exclusion. I must have regard to the long term repute of the justice system. I cannot help but find that when the violations are multiple and serious, and the impact on the accused’s interests are significant, exclusion is the right answer despite society’s interest in a trial on the merits. If I condone the type and number of violations found here, I would engender a loss of confidence in the justice system.

F. DECISION ON THE MERITS OF THE CASE

[87] Given my ruling on the admissibility of the evidence, the Crown has failed to prove the essential elements of counts 3 to 7. Ms. Boekdrukker is acquitted of these charges.

[88] There remains counts 1 and 2. Count 1 relates to Ms. Boekdrukker trafficking to D.C. Cilia on November 7, 2014. Count 2 relates to Ms. Boekdrukker’s possession of the police buy money used to purchase the cocaine on the same date. The defence made no submissions with respect to the proof of the offences.

[89] Based upon the admissions of the parties, the evidence that I have heard, and the submissions of the parties, I find that the Crown has proven all the essential elements of the two remaining offences beyond a reasonable doubt. I accept the undercover officer’s testimony. There will be a finding of guilt on these two counts.

NAKATSURU J.

Released: February 1, 2018

COURT FILE NO.: CR-16-9-378-0000

DATE: 20180201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNI BOEKDRUKKER

Accused

REASONS FOR JUDGMENT

NAKATSURU J.

Released: February 1, 2018