Court File and Parties
COURT FILE NO.: 3426116 DATE: 20180914 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MOSES IORDYE ATULE
COUNSEL: Dawn MacDonald, Kiran Gill, for the Crown Respondent Robert Chartier, for the Defendant Applicant
HEARD: June 11, 12, 21, 2018
BEFORE: Koehnen J.
[1] In late June 2016 Canada Border Services Agency intercepted a suitcase addressed to Donald Harper at an address in Toronto. The suitcase contained heroin of which the RCMP removed all but a small quantity before they attempted a controlled delivery. The delivery was unsuccessful as a result of which the suitcase was left with a Canada Post outlet on Finch Ave. in Toronto.
[2] In the early evening of July 8, 2016 Moses Atule retrieved the bag from the Canada Post outlet by presenting a letter of authorization signed by Donald Harper.
[3] Mr. Atule was arrested at approximately 6:46 PM while taking the suitcase home. The RCMP told Mr. Atule he was being arrested for:
- Possession of an illegal drug;
- Importing an illegal drug;
- Conspiracy to possess an illegal drug for the purpose of trafficking; and
- Conspiracy to import an illegal drug into Canada.
[4] The RCMP did not tell Mr. Atule specifically what type of illegal drug prompted his arrest.
[5] Mr. Atule gave a videotaped interview to the RCMP. It was exculpatory and explained how Mr. Atule came to pick up the suitcase.
[6] Mr. Atule was strip-searched and taken to the Toronto police for incarceration overnight pending a bail hearing. He was ultimately indicted for importing heroin, possessing heroin for the purpose of trafficking and of conspiring to import and possess heroin for the purpose of trafficking.
[7] Three applications arise from these events:
(i) An application by the defence for a declaration that Mr. Atule’s rights under s. 10(a) of the Charter were violated when the RCMP told him that he was being arrested for importing illegal drugs instead of telling him that he was being arrested for importing heroin. (ii) An application by the defence for a declaration that Mr. Atule’s rights under s. 8 of the Charter were violated by the way the strip-search was conducted. (iii) An application by the Crown to admit the video interview of Mr. Atule into evidence at trial.
[8] Mr. Atule submits that the charges against him should be stayed or, in the alternative, that the video of his police interview should be excluded from the trial because of the alleged breaches of his Charter rights.
[9] For the reasons set out below I find there has been no breach of Mr. Atule’s rights under the Charter and that the video of the interview can be admitted as evidence at trial.
I. Section 10(a) Issue
[10] Section 10(a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons thereof".
[11] Mr. Atule submits that he should have been told he was under arrest for importing heroin, not merely for importing an illegal drug. Mr. Atule submits there is a stark contrast between the jeopardy he would face for importing steroids (also an illegal drug) and the jeopardy he would face for importing heroin. Moreover, the Defence underscores that the officer conducting the interview, Constable Van Alstine, did not identify the drug for Mr. Atule because he hoped the accused might let something slip during the interview that suggested he knew the suitcase contained heroin.
[12] I am not persuaded by those submissions.
[13] The Crown and Defence agree that the rights in section 10(a) of the Charter are closely related to the right to retain and instruct counsel without delay found in section 10(b) of the Charter. An individual can only meaningfully exercise his rights to counsel if he knows the extent of the jeopardy in which he finds himself: R. v. Black, [1989] 2 S.C.R. 138 at para. 24; R. v. Evans, [1991] 1 S.C.R. 869 at para. 31.
[14] Mr. Atule exercised his right to counsel. He spoke to two different duty counsel. One before the interview began, another during the interview.
[15] Constable Van Alstine spoke with both duty counsel and told them that the offence involved a Schedule I drug under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended. The first duty counsel asked whether it was cocaine or heroin. Constable Van Alstine replied that he was not saying right now.
[16] Since a conviction for importing or trafficking a Schedule I drug can result in life imprisonment, both duty counsel had enough information to tell Mr. Atule he was in serious jeopardy.
[17] Although Mr. Atule spoke with duty counsel and although he was advised of his right to remain silent, he participated in the interview and gave an exculpatory explanation about how he came to retrieve the suitcase.
[18] When Constable Van Alstine told him that the suitcase contained illegal drugs, Mr. Atule asked whether it was marijuana. Constable Van Alstine told Mr. Atule that it was stronger than marijuana.
[19] It is well-established that an accused need not be told of the precise charge he faces or all the factual details of the case. The law requires that an accused be given enough information to make an informed and appropriate decision about whether to speak to a lawyer or not: R. v. Smith, [1991] 1 S.C.R. 714 at p. 729. Here Mr. Atule clearly had that level of information and spoke with two lawyers.
[20] As the Supreme Court of Canada noted in Smith at p. 729, “the emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what Mr. Atule may or may not have been told.”
[21] The facts in R. v. Sarsfield, 2012 ONSC 5625 provide a useful reference point for determining whether Mr. Atule’s s. 10(a) rights were breached.
[22] In Sarsfield, the defendant was arrested for “conspiracy to traffic drugs and for trafficking in drugs”. He waived his right to counsel and participated in a police interview. He was ultimately charged with trafficking, conspiracy to traffic, being a member of a criminal organization and possessing the proceeds of crime. Kane J. found there was no section 10(a) breach because the defendant had sufficient information to understand the nature of his jeopardy, understand the risk of self-incrimination and understand the consequences of waving the right to speak with legal counsel (at para. 44).
[23] In the case before me, Mr. Atule did not waive his right to counsel, spoke with counsel twice, was advised of his right to silence but nevertheless proceeded with the police interview. He was told the drug involved was more serious than marijuana. Both counsel he spoke with were told it was a Schedule I drug. All of that gave Mr. Atule more specific information than the defendant had in Sarsfield where the court found no breach of s. 10(a) rights.
[24] In the foregoing circumstances I find that Mr. Atule had sufficient information to understand the nature of the jeopardy he was in, the information he was given did not have any detrimental effect on his ability to seek legal advice and did not have any negative impact on the nature of the legal advice the lawyers were able to give him. In the circumstance I do not find any breach of section 10(a).
II. Section 8 and the Strip Search
[25] Section 8 of the Charter protects all persons against unreasonable search and seizure.
[26] Courts have recognized that strip searches are inherently humiliating as a result of which they have placed the onus on the Crown to establish on a balance of probabilities, the legality of the grounds for and the manner in which the strip search was carried out: R. v. Golden, [2001] 3 S.C.R. 679 at para. 90, 105.
[27] Mr. Atule initially objected to both the grounds for the search and the manner in which it was conducted. During the hearing Mr. Atule withdrew his objection to the fact that a search was conducted and limited his objection to the manner in which it was conducted.
[28] In Golden at para. 101, the Supreme Court of Canada set out 11 factors to serve as a framework for police in deciding how best to conduct a strip search in compliance with the Charter:
(i) Can the strip search be conducted at the police station and, if not, why not? (ii) Will the strip search be conducted in a manner that ensures the health and safety of all involved? (iii) Will the strip search be authorized by a police officer acting in a supervisory capacity? (iv) Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched? (v) Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? (vi) What is the minimum of force necessary to conduct the strip search? (vii) Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search? (viii) Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? (ix) Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact? (x) If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional? (xi) Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
[29] The Defence submits that the RCMP breached criteria numbers (iii), (vii), (viii) and (xi) because Constable Van Alstine:
(a) Did not seek approval from a supervising officer to conduct the search. (b) Conducted the search in a room, the door to which had a window. (c) Mr. Atule was fully undressed at one point in the search. (d) Constable Van Alstine did not keep notes about how he conducted the search.
[30] Mr. Atule submits that these failings reflect systemic issues within the RCMP because, since becoming RCMP officers 11 years before the interview, the officers who had contact with Mr. Atule were not given any formal training about how to conduct a strip search and had not heard of the Supreme Court of Canada’s decision in Golden.
(a) No Approval from Supervising Officer
[31] Constable Van Alstine did not seek authorization from a supervising officer before conducting the strip search of Mr. Atule. Constable Van Alstine was one of two officers who were present at the RCMP’s detachment at Pearson Airport at the time of the search. The other officer was aware that the search was proceeding.
[32] One of the purposes of requiring authorization from a senior officer is to ensure that there is an objective, impartial assessment of the need for a strip search: R. v. Odesho, [2016] O.J. No. 7199 (S.C.) at para. 30. That purpose is not furthered here given that Mr. Atule has effectively conceded that the strip search was justified because he was being released into the general prison population with the Toronto police department overnight pending a bail hearing.
[33] A further reason for obtaining supervisory approval is that the supervising officer would be expected to take steps to make sure the search was conducted in accordance with proper procedures: Odesho at para. 30. This purpose is engaged on the facts of this case.
[34] Given that the purpose of approval in this case would have been to ensure compliance with proper procedures, the real question turns not so much on the presence or absence of approval as it does on whether the remaining breaches of the Golden criteria amounted to a breach of Mr. Atule’s section 8 rights.
(b) Window in the Search Room Door
[35] As noted, Mr. Atule was strip-searched by Constable Van Alstine in a room, the door to which had a small window. The door was closed at all times during the search.
[36] Mr. Atule submits that someone could have looked into the window and seen the search. He submits the issue is whether someone could have looked into the window, not whether they did. The ability of others to view the strip search has been found to constitute a breach of section 8 rights in certain circumstances: Odesho at para. 31-33.
[37] The room in which the search occurred is the only room in the detachment without video surveillance. Constable Van Alstine chose not to search Mr. Atule in his cell because the cells were subject to video surveillance which could be seen by others.
[38] While there is a camera in the hallway in which the search room is located, it records people entering and leaving the room. It cannot record what is happening in the room. The room is located in a private hallway. No one walked by the door while the strip search occurred.
[39] The only other officer on duty that night stood in the hallway while the strip search was conducted. She did so in case Constable Van Alstine found himself in distress and needed assistance. The small window in the door is a security feature that allows an officer responding to a distress call to look into the room and assess the situation before entering.
[40] The RCMP’s airport detachment in Toronto is small. It has only four cells. Mr. Atule was the only person in custody that evening. No officers use the detachment as a base. As noted, there was only one other officer at the detachment when Mr. Atule was strip-searched. Even at other times, the detachment is little used. Constable Van Alstine described it as a place that officers come to work when they want to be alone because it is so quiet.
(c) Mr. Atule Was Fully Undressed
[41] Mr. Atule was fully naked at some point during the strip search. Constable Van Alstine was not aware of any requirement that detainees be permitted to alternate the removal of the top and bottom halves of their clothing to prevent them from being completely naked at any one point.
[42] Constable Van Alstine admitted that over the course of his 11 years with the RCMP, he had conducted approximately 10 strip searches, in all of which the detainee was completely naked at some point during the search.
[43] The defence relies on cases like Odesho in which searches were found to violate Charter rights if a detainee was completely naked during the search. Those cases must, however, be read as a whole. It is unusual that the failure to adhere to a single Golden factor leads to a breach of Charter rights although it is certainly possible in the appropriate case.
[44] In Odesho, the accused was fully naked for one minute and 15 seconds. Moreover, the search was videotaped; still photographs of the accused were taken while he was naked; the video was retained and was not a security video which would be played over at regular intervals; the video was reviewable in the monitoring room while the search was conducted; and the video was subsequently played on an officer’s desktop computer without any restriction on the nature and number of passersby who could view the video: Odesho at para. 31-33.
[45] Mr. Atule’s search was quite different. The entire search was short. Mr. Atule and Constable Van Alstine entered the search room at 10:24 PM. They left just before 10:26 PM. There was no video, no photography, the search was conducted by a single officer behind a closed door in the only room that was not subject to video surveillance without anyone looking on.
(d) Notes
[46] Although Constable Van Alstine kept notes about the fact that there had been a strip search, he did not keep notes about the manner in which he conducted the search.
[47] Notes can act as a useful check and balance on strip-searches. In some cases the presence of notes recording the fact of a search can prevent unnecessary subsequent searches: see for example R. v. Clarke, [2003] O.J. No. 3884, 184 C.C.C. (3d) 39. Notes which indicate a breach in the manner in which the search was conducted can also act as a prompt to prevent future breaches.
Overall Assessment of the Search
[48] The purpose of the Golden factors is not to create a mechanistic checklist the adherence to which automatically means the search was Charter compliant. By way of example, a search that complied with all 11 criteria but which involved intimidating behavior or verbal abuse by police would probably not be Charter compliant.
[49] Similarly, the failure to adhere to one or more of the factors does not automatically equate to a breach of Charter rights. A number of courts have found there to be no breach of s. 8 rights even though the police failed to adhere to one or more of the Golden guidelines: see for example, R. v. Johal, [2015] B.C.J. No. 1118 at para. 29-32; R. v. Thompson, [2013] O.J. No. 4344 at para. 55; R. v. Gamblen, 2013 ONCJ 661 at para. 177.
[50] In the words of the Supreme Court of Canada, the factors are “guidelines” which provide a “framework” for the police “in deciding how best to conduct a strip search” in compliance with the Charter: Golden at para. 101.
[51] The goal always is to determine whether the search maintained the privacy and dignity of the detainee; not to complete a check list in mechanical fashion.
[52] This approach focuses on the consequences to the detainee of failing to follow one or more of the guidelines. If the consequence is a material loss of dignity without good reason, there will be a Charter breach. If the failure to follow a guideline has no material impact on the detainee’s dignity, there is no Charter breach. In certain cases, the failure to adhere to a single Golden factor will result in a Charter breach, in other cases the failure to adhere to multiple factors will not result in a Charter breach. This is a case of the latter sort.
[53] Although Constable Van Alstine failed to obtain approval of a senior officer, had Mr. Atule naked during the search and failed to make notes of the manner in which he conducted the search, those factors do not rise to the level of a Charter breach in this case. In other cases, with other surrounding facts, those shortfalls from Golden may very well amount to a Charter breach.
[54] The general approach of Constable Van Alstine was to maintain Mr. Atule’s dignity at all times.
[55] Constable Van Alstine was respectful, relaxed and low-key throughout. There were no allegations of force, health or safety issues. Mr. Atule was allowed to remove his own clothes, there was no touching of body parts and efforts were made to maintain Mr. Atule’s privacy. A room was chosen for the search that was not subject to video surveillance, the entire time in the search room was approximately 2 minutes. Although the search room door had a window, the only other officer on the premises was standing down the hall to help in case of distress. She did not approach the door to the search room, let alone look in the window.
[56] While Constable Van Alstine may not have heard of Golden by name, he made good faith, if imperfect, efforts to adhere to its spirit.
[57] I do not agree that the record in this case reveals systemic issues within the RCMP. Although the officers who had contact with Mr. Atule were not given formal education or training since becoming RCMP officers on the proper manner in which to conduct a search, they did receive training while they were at the RCMP Academy. They also had access to the written policy the RCMP produces concerning strip searches. Constable Van Alstine has since reviewed that policy and confirms that it requires supervisory approval for strip searches, requires the detainee not to be completely naked and requires the officer conducting the search to make notes about the manner in which it was conducted.
[58] None of this is to diminish the importance of adhering to the criteria set out in Golden. Depending on the circumstances of the case, a breach of a single criteria in Golden may well amount to a breach of the detainee’s Charter rights. It may be that the RCMP was simply lucky in that the confluence of circumstances in this case was such that the shortfalls from the Golden criteria did not amount to a Charter breach.
[59] Be that as it may, the overall goal of the court remains to determine whether, in all the circumstances, the detainee was treated in a way that was respectful and dignified. In my view, the Crown has met its burden of establishing that Mr. Atule was treated in a way that did not breach his Charter rights.
III. ADMISSION OF THE VIDEO
[60] To admit a statement of an accused to a person in a position of authority, the Crown must prove beyond a reasonable doubt that the accused made the statement voluntarily.
[61] In R. v. Oickle, 2000 SCC 38 the Supreme Court of Canada set out a number of factors to help determine whether the statement was voluntary. They can be summarized as follows:
(a) Did the police engage in threatening behaviour or offer inducements to encourage the accused to speak? (b) Were there oppressive or inhumane circumstances that would affect the will of an accused to make a statement? (c) Did the accused have a freely operating mind during the interview so that he or she knew what they were saying to the police? (d) Was the interview free of deceit or trickery that would shock the community?
[62] The defence submits that police trickery in Mr. Atule’s interview should prevent admission of the video into evidence. Mr. Atule argues that not knowing the nature of the drug involved eroded the voluntary nature of his statement. This, submits Mr. Atule, amounts to deception which is an unacceptable practice: R. v. Curlin, [2009] O.J. No. 1739 (S.C.).
[63] I am unable to accept Mr. Atule’s submissions in this regard.
[64] Strictly speaking, the police were not deceptive. They told Mr. Atule that the drug was more serious than marijuana, told two sets of duty counsel that the charge involved a Schedule I drug but did not reveal that the drug at issue was heroin. They did not mislead Mr. Atule about the nature of the drug.
[65] Like the other factors listed in Oickle, the offensive element in police trickery is conduct that diminishes an accused’s free will to the point of raising a reasonable doubt about the voluntary nature of his statement. Examples that the Supreme Court of Canada gave as unacceptable conduct by police included pretending to be a chaplain, pretending to be a legal aid lawyer, injecting truth serum into a diabetic under the pretext that it was insulin and so forth. While an accused may exercise free will in one way when speaking with a chaplain or lawyer, he may exercise it entirely differently when speaking with police.
[66] Telling a lawyer that an accused is being charged with importing a Schedule I drug without disclosing the specific drug does not rise to the level of conduct that creates a reasonable doubt about the voluntary nature of the statement. All Schedule I drugs are subject to the same maximum penalty. If Mr. Atule believed the arrest involved a Schedule I drug that was treated less seriously than heroin, that was the product of speculation by him; not trickery by the police. The refusal by police to disclose the specific drug did not influence or diminish Mr. Atule’s free will.
[67] The video demonstrates that Mr. Atule was in total control of his faculties and free will throughout.
[68] He asked several times what drug was in the suitcase and was advised he would be told about that later. He asked to speak with duty counsel twice and did so twice. Police asked him for the passcode to his cell phone and he declined to provide it.
[69] The demeanour of the conversation between Constable Van Alstine and Mr. Atule was at all times civil, respectful and unintimidating. I can find nothing in the video interview that would lead me to have any doubt about the voluntary nature of Mr. Atule’s statement.
Conclusion
[70] For the foregoing reasons I dismiss Mr. Atule’s applications to stay the charges against him or exclude the video interview based on an alleged violation of his s. 10(a) and s. 8 rights under the Charter.
[71] I grant the Crown’s application to admit the video interview into evidence should it choose to do so.
Koehnen J. Released: September 14, 2018
