SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CRIMJ(F) 564
DATE: 2018 05 11
RE: Queen v. BURKE-WHITTAKER
BEFORE: TRIMBLE, J.
COUNSEL: D. Quayat, Counsel for the Crown david.quayat@ppsc-sppc.gc.ca S. Dimitrijevic, Counsel, for the Accused stefan.dimitrijevic@roylelaw.ca
HEARD: March 20 and 21, 2018
ENDORSEMENT
The Application:
[1] The accused, Mr. Burke-Whittaker, brings this application for:
An order excluding all evidence from the police search at the scene of the arrest and subsequently, including any searches of police databases; and
An order staying the charges against him arising from his arrest on 26 January 2017 on the basis that the police strip search was illegal and because a stay is the only appropriate remedy for this particular breach.
The Arrest:
[2] On 26 January, 2017, Mr. Burke-Whittaker was arrested and charged with trafficking in cocaine, and with breach of condition. His alleged customer, Mr. Pavao, was also arrested.
[3] Mr. Burke-Whittaker says that at the time of his arrest, he was talking to a friend on the phone, asking for a ride home. He had been shopping for new shoes but did not buy any. To that end, earlier in the day he withdrew $140 from an ATM and put that money in his pants’ pocket. Earlier in the week, he received his allowance of $50 and placed it in his wallet. He walked from home to the central transit hub (next to the bar) and took the bus to and from the mall. After returning to the central transit hub from the mall, he was waiting behind the bar in a niche in the wall as it was cold and windy. As he spoke to his friend, Mr. Pavao, whom he did not know, approached him and asked for a light. He kept asking. Eventually, Mr. Burke-Whittaker walked away from Mr. Pavao, at which time the police stopped them. Mr. Burke-Whittaker denies that any hand-to-hand transaction occurred. He says that he spoke on the cell phone the whole time, holding it in his right hand. He denied having any drugs, passing any to Mr. Pavao, or receiving money from Mr. Pavao.
[4] The police have a different version of events. At about 5:15 in the evening, immediately before the arrest, two Peel Region police officers were on patrol, watching the area around a Brampton bar known as a location at which drug transactions and use were prevalent. One Constable said it was dusk, the other, that it was dark. Both said that they had a clear view of the area. P.C. MacDonald said that the view was “perfect”.
[5] P.C. Douglas observed Mr. Burke-Whittaker (whom neither Constable knew) standing in the parking lot huddled next to and facing the building. He observed Mr. Pavao (whom he knew from Mr. Pavao’s association with known drug users, was part of the drug crowd), approach Mr. Burke-Whittaker. P.C. Douglas drew P.C. MacDonald’s attention to the two. The two Constables decided to leave their car, approach the two, and have a better look. They walked down to street level from the elevated parking lot in which they were parked. One said that they took the stairs, the other that they walked down a hill. Neither lost sight of the two individuals.
[6] Both Constables said that they observed a hand-to-hand transaction occur. P.C. Douglas said that as the two Constables approached the two men in the parking lot, he saw Mr. Pavao approach Mr. Burke-Whittaker. Mr. Burke-Whittaker turned to face Mr. Pavao. They stood a foot apart. He observed Mr. Pavao put his right hand into his right front pants’ pocket, take it out and touch Mr. Burke-Whittaker’s left hand. Mr. Burke-Whittaker put his right hand into his right front pants pocket, take it out and touch Mr. Pavao’s left hand. About this time, Mr. Pavao noticed the police. He put his left hand into his left front pants pocket and began to walk away.
[7] P.C. MacDonald recalls similar details of the transaction wherein Mr. Pavao touched Mr. Burke-Whittaker’s left hand. He does not recall which hand Mr. Burke-Whittaker used, subsequently, to touch Mr. Pavao’s. P.C. MacDonald also does not remember what Mr. Pavao did with whatever he received from Mr. Burke-Whittaker. P.C. MacDonald said Mr. Pavao noticed them and "scurried away”. Neither saw what, if anything, passed from Mr. Pavao to Mr. Burke-Whittaker or from Mr. Burke-Whittaker to Mr. Pavao.
[8] Based on what they saw, each Constable formed the view based on the area, their knowledge of it, Mr. Pavao’s suspected drug use and known association with drug users, Mr. Burke-Whittaker’s strange behavior before Mr. Pavao approached him, and their actions together, that they had completed a drug transaction. The Constables decided to stop the two and search them.
The Pat-Down Search:
[9] P.C. Douglas searched Mr. Pavao and found a baggie containing a small amount of crack in his left front pants pocket as well as drugs in other pockets. P.C. Douglas reported this to P.C. MacDonald. While Mr. Pavao was charged, he was not detained.
[10] P.C. MacDonald searched Mr. Burke-Whittaker and found seven, twenty dollar bills in his left front pants’ pocket and one, fifty dollar bill in his wallet. P.C. MacDonald confirmed Mr. Burke-Whittaker’s identity via his driver’s licence. P.C. MacDonald said that as they stopped the pair, he noticed that Mr. Burke-Whittaker was talking on his Blackberry. He told Mr. Burke-Whittaker to put it down.
[11] At some point, the officers decided to separate the two suspects. P.C. MacDonald cuffed Mr. Burke-Whittaker, took him to the cruiser, and read him his rights and gave him the caution. He also confirmed the number of Mr. Burke-Whittaker’s Blackberry by calling 911. He conducted a computer search and determined that Mr. Burke-Whittaker had an outstanding charge for drug possession in York Region, and, as a term of his release, was allowed to have only one cell phone provided he registered the number with York Region Police. P.C. MacDonald confirmed with YRP that Mr. Burke-Whittaker’s cell number was not registered with YRP. Mr. Burke-Whittaker was arrested and charged with possession of narcotic and breach of condition.
The Strip Search:
[12] Mr. Burke-Whittaker was taken to 22 Division, arriving at approximately 6:10 p.m. He was booked and processed. P.C. Douglas sought authorization from Staff Sergeant Aumell to conduct a strip search, advising Sgt. Aumell of the grounds for the strip search; namely, the location of the drug transaction and its reputation, Mr. Burke-Whittaker’s facing the wall, his interaction with a known drug user, the hand to hand transaction, and Mr. Pavao’s reaction once he realized the police were coming toward them. P.C. MacDonald did not speak to Sgt. Aumell before the authorization was given.
[13] Sergeant Aumell gave markedly different evidence about the authorization for the strip search. He said that either Constable Douglas or MacDonald spoke to him, saying that the strip search was necessary as Mr. Burke-Whittaker was a known for selling drugs and was known for hiding drugs on his body. Sergeant Aumell commented that he may have obtained some of this information from one of the police databases. He conceded that the search was to find narcotics. There was no concern about weapons or safety in the circumstances.
[14] At the time that the strip search was authorized and conducted, the decision had not yet been made whether to release or detain Mr. Burke-Whittaker.
[15] The strip search was conducted by the Cells' Officer, Constable Botham.
[16] P.C. Botham described the strip search room as being a rectangle, with a door at one end, on the long side of the rectangle such that the accused had to enter then turn left and proceed down the length of the room.
[17] A video camera was in the booking area just outside the strip search room. It captured the doorway of the room, but not the room itself. In other words, the door to the room was open throughout the search. The video camera captured only P.C. Botham. He remained visible through the door, in front of a table just to the left of the door. P.C. Botham’s torso could be seen but not his forearms or hands if they were extended in front of him. One cannot see the accused.
[18] P.C. Botham described a procedure that he followed, but which was not captured by the camera. In this procedure, the accused is told to proceed into the room to its mid-point, or further, for the search.
[19] Unless there is a reason (for example for safety or to retrieve evidence), the search is conducted by officers of the same sex as the accused, and without touching him. The accused is off sight of the camera and people passing the door. The door is left open to create a record of the actions of the officer conducting the search. Another officer is present to ensure “accountability”. By inference, this means that there is a second set of eyes (and a second set of notes) that see (and note) the search to ensure that procedures are followed. Finally, unless there is good reason, the accused is never to be fully naked.
[20] With a male accused, the accused is asked to remove his shirt and give it to the officer so the officer can search the shirt. The accused is asked to raise his arms and turn in a circle. The shirt is returned to the accused to put back on.
[21] Next, the accused is asked to remove his clothes from the waist down. Those clothes are searched. The accused is asked to raise his penis and scrotum. He is asked to turn around completely, turn his back to the officer, bend over exposing his rectum, and asked to cough.
[22] P.C. Botham said that while he could not remember if he conducted the search of Mr. Burke-Whittaker’s top half or bottom half first, the strip search went exactly as it was supposed to go, and at no time was Mr. Burke-Whittaker fully naked. P.C. Botham admitted that for a brief time both of the arresting P.C.s stood at the door to the room.
[23] Mr. Burke-Whittaker says that while his strip search was only a few minutes long (he agreed it was ‘very short’), he was fully naked for a portion of it. He removed his shirt for the inspection of his upper half as directed. He was then asked to remove his pants and underwear for the inspection of his bottom half, without having his shirt returned. Further, for the whole, brief time he was completely naked, P.C. Botham and both arresting Constables were looking at him.
[24] The video recording of the door to the strip search room was entered into evidence. As indicated above, at no time was Mr. Burke-Whittaker visible to the camera, which was aimed straight into the open doorway. The camera captured P.C. Botham, showing his full body, except his hands and forearms when they were not at his side. The material aspects of the tape and the times thereof are as follows:
6:20:30 Mr. Burke-Whittaker is brought in for booking.
6:36:35 Mr. Burke-Whittaker enters the strip search room followed immediately by P.C. Botham. Mr. Burke-Whittaker is wearing a white t-shirt, grey sweat pants, and white socks.
6:37:07 P.C. Douglas stands in the doorway straddling the threshold, facing toward Mr. Burke-Whittaker. P.C. Botham stands facing a table immediately to the left of the door. Mr. Burke-Whittaker cannot be seen from the door.
6:37:10 P.C. Botham, with arms extended so that his forearms are out of view, motions as if he is manipulating something. Periodically, a flash of white cloth appears in the open doorway. This continues to 6:37:20.
6:37:47 P.C. Botham, with arms extended so that his forearms are out of view, motions as if he is manipulating something. Periodically, a flash of grey cloth appears in the open doorway.
6:37:59 Officer MacDonald walks toward the door, stands behind P.C. Douglas and leans against the wall, looking toward Mr. Burke-Whittaker.
6:38:06 The two arresting officers look away and begin to walk away.
6:38:17 P.C. Botham leaves the search room, followed one second later by Mr. Burke-Whittaker.
[25] In support of his claim that he was completely nude for a period of time, Mr. Burke-Whittaker says that it is apparent from P.C. Botham’s arm movements that the officer did not return Mr. Burke-Whittaker’s t-shirt before obtaining his pants. I cannot agree. The movements of Officer Botham’s arms are not apparent in the video. I can draw no such conclusion, nor can I grant the contrary conclusion. The video is not helpful on this point.
Positions of the Parties:
a) Mr. Burke-Whittaker
Mr. Burke-Whittaker says:
The arrest was arbitrary. There were no reasonable and probably grounds to detain or arrest him.
The search at the scene was warrantless and therefore presumptively a breach of Mr. Burke-Whittaker’s right to be secure against unreasonable search and seizure. Since the arrest was illegal, so too is the search incident to arrest.
The strip search was warrantless and therefore presumptively a breach of Mr. Burke-Whittaker’s right to be secure against unreasonable search and seizure. Since the arrest was illegal, so too is the search incident to arrest. The authorization and the method used to conduct the search were also improper.
b) The Crown:
The Crown says that the arrest was lawful, the pat-down search reasonable, and the strip search proper.
Analysis:
1) The Arrest
[26] There is no disagreement on the law.
[27] In order for an arrest to be lawful, the Court must conclude that a reasonable person in the position of the arresting officer must be able to conclude that there were reasonable and probably grounds to make the arrest. The police do not have to establish a prima facie case for the conviction before making the arrest (see: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at para.s 15-17). Part of the reason for this standard is that officers are required to make decisions regarding arrest quickly, in volatile and rapidly changing situations, and based on information that is often less than exact or complete (see: R. v. Golub (1997), 1985 56 (SCC), 17 C.C.C. (3d) 193 (Ont. C.A.); R. v. Hanson, [2009] O.J. No. 4152 (S.C.J.), at para. 55 ff.).
[28] There must be some relationship or logical association between the accused and the alleged crime, however, to give the Constitutional protection any meaning. The Court must view the entire “constellation of objectively discernible facts” of the situation, as a whole (see: R. v. Hall, 1995 647 (ON CA), [1995] O.J. No. 544, at para. 36). These factors include the officer’s observations, the circumstances in which they are made, the dynamics of the situation, and the experience of the officers. Considering the reliability or precision of each (or any one) fact or observation, in isolation, would be reversible error (Hanson, supra. para. 57-59).
[29] The onus on proving the unlawful nature of the arrest is on the applicant (see: R. v. Brown, 2012 ONCA 225, [2012] O.J. No. 1569, at para. 19; R. v. Grant, [2009] S.C.R. 353).
[30] The Crown concedes that should I hold that the arrest was improper, Mr. Burke-Whittaker’s application should be allowed, and the charges stayed.
[31] I hold that the arrest was proper.
[32] Mr. Burke-Whittaker says that I should accept his versions of the facts, and hold that the arrest was illegal. He says that he has an explanation for waiting in the parking lot on the lea-side of the building (guarding against the wind and cold, waiting for his ride), for having the money on his person ($120 in his pocket which he withdrew from the bank that day to purchase new running shoes and $50 in his wallet which was his allowance given to him earlier in the week) and for his interaction with Mr. Pavao (the latter persisted in asking for a light for his cigarette).
[33] He says that I should not accept the evidence of the police officers as it was filled with contradictions on the circumstances leading up to the arrest including two “major inconsistencies” affecting their ability to observe. These inconsistencies include: different stories as to how they descended the hill to approach Mr. Burke-Whittaker; who was on whose side as they descended; and whether it was dusk or dark.
[34] In addition, Mr. Burke-Whittaker says that the contradictions in the evidence of the two arresting officers with respect to aspects pertaining to the strip search are such that their credibility, overall, is irretrievably damaged, and that damage extends to their evidence concerning the arrest and initial pat-down search. He points to: the difference between what P.C. Douglas said he told Sgt. Aumell, and what Sgt. Aumell says one of the two P.C.’s told him or what he might have learned from searches he did on the computer; P.C. Douglas changed evidence between the preliminary inquiry and the Application’s hearing regarding whether Mr. Burke-Whittaker was fully naked (he was, and was not, respectively); P.C. MacDonald’s evidence at the Application that he did not remember seeing Mr. Burke-Whittaker naked or could have seen him naked, when compared to his vantage point as indicated in the video.
[35] Mr. Burke-Whittaker would have me reject the arresting officers’ evidence entirely, except for P.C. Douglas’ evidence at the preliminary hearing that he said Mr. Burke-Whittaker was fully naked.
[36] Taking the evidence as a whole, and viewing it objectively, I find that there is a relationship between Mr. Burke-Whittaker and the alleged crime. Further, when the evidence as a whole is viewed objectively, a reasonable person in the position of the arresting officer would conclude that there were reasonable and probable grounds to make the arrest.
[37] I do not accept Mr. Burke-Whittaker’s position for a number of reasons. These include:
a) His version of events speaks to the merits of the case against him and to reasonable doubt. Whether his version of events is accepted speaks to the events that underlie what the police saw, not whether their belief was reasonable;
b) His approach to the evidence of the circumstances of the arrest was to view the factors and events as a series of criteria which should be reviewed in isolation and eliminated individually. I am required to review the entire constellation of circumstances as a whole;
c) There was no contradiction in the evidence of the arresting officers concerning the circumstances of the arrest. Whether it was dark or dusk at the time of the events leading up to the arrest is a divergence in evidence of no moment. Both arresting officers testified that it was clear and they had no difficulty observing what they saw.
d) The one reported two distinct hand to hand transactions and the other only one of the two. This, however, is a difference in their perception. P.C. MacDonald never denied that the second transaction never occurred; and
e) The evidence concerning what Sgt. Aumell was told, and the evidence concerning Mr. Burke-Whittaker’s nudity does not sufficiently damage the arresting officers’ credibility such that I should reject their evidence in its entirety with respect to the circumstances of the arrest. I will discuss this evidence with respect to the strip search in due course.
2) The Pat-Down Search
[38] This search was warrantless. Therefore, it is presumed unreasonable unless the Crown establishes that it is indecent to arrest and that the arrest was unlawful. The burden is on the Crown (see: R. v. Brown, [1996] O.J. No. 704 (Ont. C.A.).
[39] A warrantless search incident to arrest, therefore, derives its authority from the lawful arrest and requires no independent justification, either at common law or under the Canadian Charter of Rights and Freedoms (see: R. v. Muller, 2014 ONCA 780, at para. 38; R. v. Golub, 1997 6316 (ON CA), at para. 31; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at pp. 185-186. A warrantless search is justified if the arrest is lawful and the search was incident to the arrest, meaning the search must have related to the reasons for the arrest itself: Muller, supra; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 91-92, 98; R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 17.
[40] In this case, Mr. Burke-Whittaker’s argument that the pat-down search was improper rests entirely on the argument that the arrest was illegal. He advances no argument that the pat-down search was improper for other reasons.
[41] Having found that the arrest was legal, I find that the pat-down search, incidental to arrest, was also proper.
3) Strip Search
[42] The Supreme Court of Canada tells us in R. v. Golden, [2001] 1 S.C.R. 679 at para.s 47, 88 and 99 that the Crown has the onus to establish the legality of the warrantless strip search. Such searches are lawful if they are conducted as incident to a lawful arrest for the purposes of discovering weapons on the accused’s person, obtaining evidence related to the reason for arrest, or if the accused might be taking dangerous substances into the cells if and when he is detained. If the Crown has satisfied that the strip search is justified, it then has to be conducted properly.
[43] In addition, at para. 101, the Court in Golden laid out eleven considerations to weigh when deciding whether the strip search was conducted properly. These factors must be weighed together in determining whether there is a s. 8 Charter breach. The failure to meet one of the factors does not mean that there is a Charter breach. Some of these considerations may be met to a greater or lesser degree (see: R. v. Malloy, 2017 ONSC 5631 at para. 69; and R. v. Wellington, 2016 ONSC 6475 at para. 69).
[44] In this case, the Golden factors at issue are:
• Whether the search was authorized by a supervising police officer?
• Whether the search involved no more than the minimum number of police officers in the circumstances?
• Whether Mr. Burke-Whittaker was required to completely undress at any one time?
[45] Mr. Burke-Whittaker says that the strip search was illegal for the following reasons:
a) Since the arrest was illegal, so too was the strip search.
b) The strip search was not justified.
a. There was never any concern regarding weapons.
b. There was no basis to suspect that Mr. Burke-Whittaker secreted drugs or other dangerous substances in his body cavities that might be evidence or that might harm anyone in the cells. Indeed, at the time of the strip search it was not decided whether Mr. Burke-Whittaker would be detained or released.
c. There were no grounds to suspect that Mr. Burke-Whittaker secreted evidence of the offence (drugs) in any body cavity. Mr. Pavao had only small amounts of drugs on his person. Mr. Burke-Whittaker had only a small amount of cash on his person.
Authorization
[46] I hold that the strip search was a not authorized properly.
[47] Having held that the arrest was legal, so to was the strip search, to that extent. I agree that since weapons were never a concern, this factor is irrelevant.
[48] My concern, however, is over whether the strip search was justified either to protect the safety of those in the cells or to secure evidence.
[49] Mr. Burke-Whittaker says that the reasons given for the strip search are fatal to the Crown’s position.
[50] P.C. Douglas said that he gave Sgt. Aumell as the grounds for the search the same grounds he had for the arrest. P.C. MacDonald says that he did not speak to Sgt. Aumell in this respect. P.C. Douglas said that after he gave Sgt. Aumell his grounds for requesting a strip search, Sgt. Aumell authorized it.
[51] Sergeant Aumell said that he was told that the strip search was necessary because Mr. Burke-Whittaker was a known seller of drugs and known to hide them on his person. At first, Sgt. Aumell said he was told this by one of the arresting officers, although he did not recall which. He then admitted that he could have obtained this information from a search he might have done on police databases. There was evidence before me that Mr. Burke-Whittaker was on release of charges in Newmarket of possession of cocaine for the purposes of trafficking. We do not know, however, whether Sgt. Aumell in fact did searches on databases. In any event, there is no evidence before me that there was any suggestion that Mr. Burke-Whittaker was ‘known’ to hide drugs in body cavities or on his body.
[52] Mr. Burke-Whittaker says that this represents a clear contradiction in the evidence of P.C. Douglas. He says that I should accept what Sgt. Aumell says and reject what P.C. Douglas says he told Sgt. Aumell. Mr. Burke-Whittaker says that I should find that Sgt. Aumell accurately recorded what P.C. Douglas told him and that P.C. Douglas lied in order to obtain authorization for the strip search.
[53] I do not accept Mr. Burke-Whittaker’s position for two reasons. First, it is not clear from Sgt. Aumell that the two reasons he was given to obtain authorization for the strip search came from P.C. Douglas, alone. Sgt. Aumell said he could have done database searches. He was not cross-examined about whether he did, and what he found from those other searches, if he did them.
[54] Second, because Sgt. Aumell’s evidence comes from his notes, he does not remember which arresting officer told him the grounds for arrest. He admits that did not record what he was told verbatim, and admits that there may have been other factors that affected his authorization than what he was told. I cannot conclude that P.C. Douglas lied to Sgt. Aumell.
[55] What I am left with, however, is two sets of reasons for the strip search; those P.C. Douglas says he gave Sgt. Aumell, and those Sgt. Aumell records as being given (possibly supplemented by other search results).
[56] The Crown says that regardless of which explanation for the need for a strip search that I accept, either explanation is sufficient for the authorization. The reasons recorded by Sgt. Aumell clearly support the authorization for the strip search. The reasons P.C. Douglas says he gave also support the authorization in that there is reasonable and probably grounds to suspect that a street level retailer of drugs often will store drugs directly next to his person or in a body cavity to avoid detection on a pat-down search.
[57] I agree with the Crown in that if I accepted P.C. Douglas’ evidence about what he said to Sgt. Aumell, a strip search was reasonable in all the circumstances. I disagree with the Crown, however, in that I do not have to accept one or the other of the two justifications for the authorization.
[58] The legality of the strip search fails because the Crown fails in it onus of proof. I say this for two reasons:
a) What Sgt. Aumell provides as the grounds for authorizing the search (that Mr. Burke-Whittaker is a known seller of drugs and known to hide drugs on or in his body) are conclusory statements based on information he was given or obtained independently. I have no reason to doubt his credibility. I have reason, however, to doubt the accuracy of information underlying his conclusory statements given as reasons for the authorization for the strip search. Since a) what must underlie Sgt. Aumell’s conclusory statements differ greatly from what P.C. Douglas says he told Sgt. Aumell, b) Sgt. Aumell may have done other searching, and c) we do not know what that other searching was or the results it provided, I do not accept that his authorizing the strip search was appropriate.
b) I cannot accept what P.C. Douglas gave as reasons for the strip search. His account of what he told Sgt. Aumell differs tremendously from what Sgt. Aumell records he was told, such that it casts doubt on what P.C. Douglas said he told Sgt. Aumell. Sgt. Aumell said that he may also have formed his conclusions authorizing the strip search from the results of his independent searching of police databases. This latter evidence, however, was provided almost as an afterthought or throw-away remark.
Was Mr. Burke-Whittaker Completely Naked During the Strip Search
[59] Mr. Burke-Whittaker says that the strip search was not conducted properly in that he was fully naked for a brief period of time, in front of three police officers. The Crown denies that Mr. Burke-Whittaker was ever fully naked.
[60] I conclude that Mr. Burke-Whittaker was not fully naked. In reaching this conclusion, I make the following findings:
a) I find Cells' Officer Botham credible. He gave his evidence in a straightforward manner. He laid out a procedure for strip searches which he says he followed, with the exception of the numbers of eyes on Mr. Burke-Whittaker at one period of time. He was not shaken on cross-examination. His evidence was only directly contradicted by that of Mr. Burke-Whittaker.
b) P.C. Douglas’ evidence on this point is not helpful. He said at the Application’s hearing that he did not remember if Mr. Burke-Whittaker was ever completely naked. He was asked that same clear question at the preliminary inquiry and answered “Yes, I believe so”. He attempted to clarify this answer at the Application. Because of an ambiguous answer at the preliminary inquiry, I cannot accept that answer as true. Because of his inconsistent answer before me, and his attempt to explain away his answer at the preliminary inquiry, I cannot accept his evidence at the Application as reliable, either.
c) Mr. Burke-Whittaker said that he was nude for a period of time. I do not accept this. His evidence, overall, is suspect. It makes no sense that he waited in the wind and cold 8 minutes for his ride, when the walk home was only 8 minutes. He says that the video supports his evidence in that P.C. Botham’s movements to not indicate that he handed Mr. Burke-Whittaker’s shirt back to him before demanding that the remove his pants. As I said earlier in these reasons, I cannot make this finding. The video is neutral on this point.
[61] These reasons, alone, are sufficient to doubt Mr. Burke-Whittaker’s evidence about his being totally naked for a period of time.
[62] Mr. Burke-Whittaker had the ability to lead corroborating evidence but did not do so. To be clear, Mr. Burke-Whittaker has no onus on this portion of the Application. It was within his power, however, to produce relatively independent confirmatory evidence to support key aspects of his story; namely, the explanation for the money on his person (by producing his mother to prove the allowance or a bank document to support the withdrawal) or that he phoned someone to get a ride home from the bus station (by producing that person or the phone records), both of which would have assisted in my assessment of his credibility.
[63] Even if I had found that Mr. Burke-Whittaker was completely naked for a period of time, I would not have found, for that reason, alone, that there was a s. 8 Charter breach. Brief periods of nudity are not sufficient, alone, to constitute a Charter breach (see: R. v. Malloy, 2017 ONSC 5631, at para. 70 to 72 in which Woollcombe, J. held that if there was total nudity, it was for only a “minute or two”; and R. v. Wellington, 2016 ONSC 6475 in which Ricchetti J. noted that the complete nudity was “extremely brief – less than a minute.”). In this case, if Mr. Burke-Whittaker was completely naked, it appears to have been approximately for 20 to 30 seconds based on the timeline set out above.
Numbers of Officers Watching the Strip Search
[64] Mr. Burke-Whittaker says that for the period while he was totally naked, three officers (P.C.s Botham, Douglas, and MacDonald) were watching him. P.C. Douglas admits that he was watching during most of the strip search. P.C. MacDonald did not remember if he was watching, although admitted it once he was shown the video.
[65] P.C. Botham said that it is procedure to have two people observe the strip search. Mr. Burke-Whittaker took issue with the fact that there were three people observing.
[66] The video shows that P.C. MacDonald was in a position to observe the strip search for a period of approximately 8 to 10 seconds (6:37:58 to 6:38:06). While P.C. MacDonald does not recall seeing Mr. Burke-Whittaker nude, he was in the position to do so, and from the video, I conclude that he was looking into the room and did see Mr. Burke-Whittaker during the strip search.
[67] Having three people observe part of the strip search for a period of 8 to 10 seconds, like the brief period of nudity, does not create, by itself a s. 8 Charter breach.
Weighing the Golden Considerations
[68] In this case, I conclude that the strip search was a violation of Mr. Burke-Whittaker’s Charter right to be secure from unreasonable search and seizure.
[69] The strip search was conducted appropriately, overall. It was done at the police station in a private room. Mr. Burke-Whittaker was sufficiently far into the room that no one could see him except those authorized to be in the open door. The officers conducting or observing the search were male. A record was kept of the search. The P.C.s were all polite and respectful. No one touched him. They asked him to remove his clothing for the search and he complied voluntarily. It was conducted quickly, and involved only a visual inspection of Mr. Burke-Whittaker’s body.
[70] That there were more than the minimum people necessary observing part of the search, on the full constellation of facts, is a minor matter, insufficient to render the search a violation of Mr. Burke-Whittaker’s s. 8 Charter rights.
[71] I conclude, however, that the failure of the Police to record a clear and justifiable concern to authorize the strip search, in all of the circumstances, makes the strip search unreasonable and a violation of Mr. Burke-Whittaker’s s. 8 Charter right to be secure from unreasonable search. The Crown failed to meet its obligation to prove that the strip search was necessarily incident to the arrest, to preserve evidence, or to ensure the safety of the police, Mr. Burke-Whittaker, or others in the cells. I have explained that I could not make a finding as to which of the versions of what was said to Sgt. Aumell was true. Two different versions for the necessity of the search were given. The divergence between the versions is sufficiently great to render each explanation unreliable. The Police have an onus to clearly and properly document the reasons for the authorization for the strip search. They failed to do so.
Remedy
[72] The usual remedy for a Charter breach such as this is to exclude the evidence disclosed by the Charter non-compliant strip search under s. 24(2). In this case, however, the strip search revealed no evidence. Hence, Mr. Burke-Whittaker says that I should stay the charges under s. 24(1) of the Charter.
[73] The invasive nature of a strip search, and the serious repercussions of one that violates Charter rights was outlined by Nakatsuru, J. of the Ontario Court in R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786, especially where the accused is Afro-Canadian, as is the case with Mr. Burke-Whittaker.
[74] Notwithstanding the persuasive argument of Nakatsuru, J., I do not stay the charge.
[75] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 30 and 31, the Supreme Court of Canada held that a stay of proceedings is the most drastic remedy a court can order because it permanently halts the prosecution of an accused, frustrates the truth-seeking function of the trial, deprives the public of the opportunity to see justice done on the merits, and may deprive the alleged victim of crime of his or her day in court. A stay should be granted only in the rarest and clearest of cases.
[76] The test used to determine whether a stay of proceedings is warranted consists of three requirements, all of which must be met.
There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Babos, at para. 57).
[77] In this case, the first two Babos criteria are not met. There is no ongoing prejudice or unfairness to Mr. Burke-Whittaker’s right to a fair trial (see: Babos, para. 34). There is no evidence that is improperly admitted. Mr. Burke-Whittaker’s jeopardy is not increased. There is no prejudice to the integrity of the justice system that will be “manifested, perpetuated, or aggravated” through the trial process or its outcome.
[78] Further, there is an alternate remedy that redresses the prejudice, if it existed. In this case, there is no indication on the facts, and no submission was made, that this charge attracts a minimum sentence under s. 3(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended. Therefore, any Charter breach can be addressed in fixing sentence. Should Mr. Burke-Whittaker be convicted of trafficking in cocaine, I strongly recommend to the trial judge that, in imposing any sentence, he or she take into considerations my decision, herein, as a mitigating factor.
Trimble, J.
Date: May 11, 2018
COURT FILE NO.: CRIMJ(F) 564
DATE: 2018 05 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
QUEEN v. BURKE-WHITTAKER
BEFORE: TRIMBLE, J.
COUNSEL: D. Quayat, Counsel for the Crown david.quayat@ppsc-sppc.gc.ca
S. Dimitrijevic, Counsel, for the Accused stefan.dimitrijevic@roylelaw.ca
ENDORSEMENT
Trimble, J.
Released: May 11, 2018