COURT FILE NO.: CRIMJ (F) 1498/16 DATE: 2019 06 11

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN S. Aujla, for the Crown

• and -

JAMES GRANT G. Singh, for the Defence

HEARD: April 17, 18, 23, 24, 25, 26, May 21, 22, 23, 24, 27, 2019, at Brampton

RULING ON CHARTER APPLICATION

André J.

[1] Mr. James Grant brings an application pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of the criminal charge against him, on the grounds that after he was charged with importing a controlled substance into Canada on January 24, 2015, state agents on numerous occasions violated his ss. 2, 7, 8, 9, 10, 12 and 15 Charter rights.

BACKGROUND FACTS

[2] Mr. Grant arrived in Canada from Aruba on January 24, 2015. He was processed by an electronic machine which coded him for a mandatory screening.

[3] Mr. Grant proceeded through immigration but was referred by a Border Services Officer (BSO) to the secondary area for a search of his belongings. The officer testified in these proceedings that there had been a lookout for Mr. Grant and that because of the electronic code on Mr. Grant’s declaration card, he had no choice but to refer Mr. Grant for a secondary inspection.

[4] BSO Denis Boyer inspected Mr. Grant’s luggage. He twice asked Mr. Grant to empty his pockets. Mr. Grant refused. The officer summoned his supervisor to do a pat down search of Mr. Grant because he had received information on his computer that Mr. Grant had been found guilty of a weapons charge in the U.S. Mr. Grant stated that he did not consent to being searched.

[5] The officer x-rayed Mr. Grant’s checked luggage because he found it to be heavy and noticed what he believed to have been an anomaly. He subsequently pierced the luggage and observed a white powdery substance which later tested positive for cocaine. The RCMP officers subsequently arrested and charged Mr. Grant with importing a controlled substance into Canada. They read him his rights to counsel and conducted a strip search of Mr. Grant. Mr. Grant refused to provide his fingerprints.

[6] Mr. Grant was taken into custody. He was released on January 31, 2015, on a recognizance with conditions that included a direction to provide his fingerprints.

[7] Mr. Grant attended at a police detachment on February 2, 2015, to provide his fingerprints. Despite numerous requests, he refused to provide “identifying data” before having his fingerprints taken. He insisted that providing data such as information about any tattoos, scars and weight was not part of the “contract” he signed when he was released. Cst. Benedict charged him with Obstruct Police and Breach of Recognizance and held him for a bail hearing. These charges were subsequently withdrawn by the Crown.

[8] On February 5, 2015, RCMP officers attended the Brampton Court to take Mr. Grant’s fingerprints. Following a struggle, an officer put Mr. Grant to the floor. Mr. Grant then agreed to give his fingerprints and an officer forced him to do so.

[9] On November 9, 2015, Mr. Grant came to court for his preliminary hearing. He attempted to enter the courthouse with a flagpole with a flag. The security officers prevented him from doing so. After conversations with security officers, their supervisor and Mr. Grant’s lawyer, Detective Sgt. Andrew Cooper forcefully removed Mr. Grant from the courthouse. A brief altercation ensued outside the building. Mr. Grant claimed that Peel Regional Police Officer Low grabbed his pole, broke it in two and stomped on his flag. However, Cst. Buckley testified that she took the pole from Mr. Grant’s fingers and gave it to two other police officers.

[10] Mr. Grant was taken to the Maplehurst Detention Centre. He refused to be strip searched. He was then taken to a segregated area and placed in a dry cell. On November 10, 2015, prison officials attended Mr. Grant’s cell at 7:00 a.m. and at 8:30 a.m. to ask him to allow himself to be strip searched. He refused. The authorities then decided to have their ICIT unit attend the cell at 10:00 a.m. to conduct a strip search of Mr. Grant.

[11] There is conflicting evidence about what happened next. Mr. Grant testified that the officers barged into his cell, threw him to the floor and punched, kicked and pepper sprayed him. They handcuffed him at his back and placed leg irons on him. They forcefully strip searched him and then placed him in a shower to remove the pepper spray from his eyes. A prison officer then punched him in the eye while he was in the shower. Mr. Grant testified that on account of the beating, he suffered a broken rib, bruises from the handcuffs, redness to the eye where the prison officer punched him and other injuries.

[12] On March 7, 2016, Mr. Grant appeared before Duncan J. for a preliminary hearing. Duncan J. identified himself. Mr. Grant repeatedly asked the judge for proof of his identity. Mr. Grant tried to present proof of his identity. He described himself as a “sovereign citizen”. He refused to identify himself as James Grant. Duncan J. committed Mr. Grant to stand trial under s. 536 of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[13] Mr. Grant appeared before Durno J. on March 18, 2016. Mr. Grant repeatedly asked Durno J. for proof of his identity even after Durno J. had identified himself as a judge of the Superior Court. Mr. Grant told Durno J. that he is a “sovereign of the land. I am here today to deal with the issue of jurisdiction.” He further stated: “I’m a sovereign of my land, which takes rank over, your title … because you have not provided who you’re even with. Who is your government? As of the moment I have the superior rank in this courtroom until you identify yourself.”

[14] Mr. Grant brought a s. 11(b) application on November 26, 2018, before Justice David E. Harris. Harris J. dismissed the application after concluding that Mr. Grant did not do his utmost to move the case along because of his “obstreperous, obstructionist conduct throughout the entire length of these proceedings”.

[15] Mr. Grant accuses the court of being biased again him largely because he has been stereotyped by the police officers he has interacted with and by the courts as a “freeman of the land” who does not abide by the laws in our community.

ANALYSIS

[16] For analytical purposes, I will consider Mr. Singh’s submissions regarding a) apprehension of bias and b) the alleged violation of Mr. Grant’s constitutionally protected rights with respect to each of the incidents he has identified. These are:

1. Mr. Grant’s arrest.
2. Mr. Grant’s show-cause hearing on January 25, 2015.
3. The fingerprint incident on February 2, 2015.
4. The fingerprint incident on February 5, 2015.
5. The flagpole incident on November 9, 2015.
6. The Maplehurst incident on November 10, 2015.
7. The March 7, 2016, appearance before Duncan J.
8. The March 20, 2016, appearance before Durno J.

Mr. Grant’s Arrest

[17] Mr. Singh submits that the BSOs violated Mr. Grant’s ss. 8, 9 and 10(b) Charter rights. Specifically, he contends that:

(a) The BSO officer had a duty to give Mr. Grant his Charter rights “at the get go.” (b) Mr. Grant was detained, pursuant to s. 9 of the Charter, from the time he arrived in Canada and accordingly, the officers had an obligation before searching his luggage to read Mr. Grant his s. 10(b) rights. (c) The secondary officer had no lawful authority to have his supervisor do a pat down search of Mr. Grant before any drugs were found in his luggage.

[18] I disagree with all three submissions. In R. v. Simmons, [1998] 2 S.C.R. 495, at p. 529, Dickson C.J. noted that:

In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8.

[19] The court noted that even more intrusive searches, such as strip searches and “loo searches” that engage ss. 8 and 10 of the Charter are justified on a lower standard than the normally applicable reasonable and probable grounds standard: Simmons, at p. 528; see also Kelly v. Palozzo, 2008 ONCA 82, 89 O.R. (3d) 11, at para. 54.

[20] Mr. Grant was not arbitrarily detained following his arrival in Canada. He was detained following his arrest after the BSO officer found what he believed to have been cocaine in Mr. Grant’s luggage.

[21] Even if the secondary officer was mistaken about Mr. Grant having been convicted of an offence in the U.S., the fact that he honestly believed that Mr. Grant had committed a larceny in the U.S., as he testified, gave him the grounds to authorize a pat down search of Mr. Grant. This search was minimally intrusive and did not violate Mr. Grant’s s. 8 Charter rights.

[22] For the above reasons, I find that the BSO officers did not violate Mr. Grant’s ss. 8, 9 and 10(b) Charter rights on January 24, 2015.

Show Cause Hearing on January 25, 2015

[23] Mr. Singh submits that the court violated Mr. Grant’s s. 2 Charter rights and, as a result, raised a reasonable apprehension of bias in the way it treated Mr. Grant. He submits that in belittling Mr. Grant’s statement that he is a “Sovereign of Orion”, the court violated Mr. Grant’s “conscious thoughts and beliefs” and manifested a great deal of bias against Mr. Grant. This created an “avalanche” of discriminatory treatment against Mr. Grant which cumulatively justifies a stay of the proceedings against him.

[24] Mr. Singh’s submission concerning a reasonable apprehension of bias also applies to Mr. Grant’s court proceedings on March 7, 2016, before Duncan J. and on March 18, 2016, before Durno J.

Analysis

[25] Section 2 of the Charter provides that:

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other medium of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

[26] On January 25, 2015, Mr. Grant told the court, in reference to the name James Grant, “That is not my name. I go by many titles.” He also told the court, “I am not a Canadian citizen.” He also said, “James Grant is not me. I am here under my proper person.”

[27] The presiding Justice of the Peace threatened to issue a warrant for the arrest of James Grant if he did not appear before her. Mr. Grant also brought up the issue of identity when he appeared before both Duncan and Durno JJ.

[28] I should also note that while Mr. Singh indicated at the outset of this application that his client acknowledges that he is James Grant, Mr. Grant testified that, “James Grant is my estate. I am Jacklyn. That’s who is speaking to you. I am the signing authority for James Grant.”

[29] Mr. Grant is entitled to his belief system. However, he travelled to Aruba on a Canadian passport issued in the name “James Grant”. I can take judicial notice of the fact that he would have relied on this passport when he boarded the airplane to travel to Aruba and would have presented the same passport to the immigration authorities in Aruba. Similarly, he would have presented his passport to the Aruban authorities before he returned to Canada.

[30] While Mr. Grant is entitled to his thoughts and beliefs, he cannot cherry pick when his name is James Grant, “Jacklyn” or “Sovereign of Orion”. There is no evidence that he has legally changed his name. Given his denial that his name was James Grant and that he was a Canadian citizen, the learned Justice of the Peace acted appropriately in threatening to issue a bench warrant if James Grant did not make an appearance before her.

[31] In my view, there is no evidence before me that the Justice of the Peace violated Mr. Grant’s s. 2 Charter rights.

Reasonable Apprehension of Bias

[32] In Newell v. Sax, 2019 ONCA 455, the Ontario Court of Appeal noted at para. 19 that: “There is a very stringent standard for finding a reasonable apprehension of bias.” The test asks whether “an informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude, whether consciously or unconsciously, that the matter was not decided fairly: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394. The grounds for this apprehension must be substantial: Committee for Justice and Liberty, at p. 395.

[33] The court in Newell also noted approvingly the following comments in Bales Beall LLP v. Fingrut, 2013 ONCA 266, at para. 20 that:

The suggestion of judicial bias – actual or perceived – is a serious allegation. It is tantamount to the assertion that a miscarriage of justice occurred. As a result, it should not be advanced lightly and without evidentiary support.

[34] In my view the test for bias has not been met with respect to Mr. Grant’s court appearances on January 25, 2015, March 7, 2016 or March 20, 2016.

[35] Mr. Singh submits that Duncan J.’s references to Mr. Grant’s statement concerning his identity as “gobbledygook” and as “crap” is evidence of bias against Mr. Grant. However, even if I deprecate the sharpness of Duncan J.’s expression, I cannot conclude that it reflects bias against Mr. Grant. Mr. Grant asked Duncan J. for his identity at least 14 times. Duncan J. clearly concluded that Mr. Grant’s pronouncement of his new identity made no sense. In my view, he was entitled to do so.

[36] Similarly, Mr. Grant was advised by Durno J. on a number of occasions that he is a judge of the Superior Court of Justice. Mr. Grant repeatedly asked Durno J. for proof of his identity. Mr. Grant insisted on providing Durno J. with proof of his identity as a “Sovereign of Orion”. The presiding justice acted appropriately in threatening to issue a bench warrant for James Grant given the accused’s denial that he was in fact, James Grant.

[37] Additionally, I am of the view that Mr. Grant cannot seek the remedy he seeks because of a perceived bias showed on March 7, 2016 and March 20, 2016. If Mr. Grant was troubled by Duncan J.’s decision to commit him to stand trial, he was required to seek a judicial review of that decision which he chose not to. Second, if he had concerns about Harris J.’s decision to deny his s. 11(b) application, his proper recourse would have been to appeal that decision, rather than to seek a stay of the proceedings, partly on the basis of an allegation of judicial bias.

Fingerprint Incident of February 2, 2015

[38] Mr. Grant attended a police division on February 2, 2015, to give fingerprints as ordered on January 31, 2015. Upon arrival, he repeatedly asked for Cst. Moodie, who was one of the officers who arrested Mr. Grant on January 24, 2015. Sgt. Dawkins told him that Cst. Moodie was not working that day and would not be involved in taking his fingerprints.

[39] Cst. Joseph Benedict asked Mr. Grant a series of questions to obtain identifying data before taking Mr. Grant’s fingerprints. Mr. Grant answered some questions but refused to answer others. He told the officer that he had only agreed to give his fingerprints; not to answer Cst. Benedict’s questions. The officer advised Mr. Grant that s. 2 of the Identification of Criminals Act, (“ICA”) R.S.C., 1985, c. I-1, authorized him to ask the questions. Mr. Grant continued to refuse while stating that he was only willing to provide his fingerprints. Mr. Grant asked to speak to his lawyer. Sgt. Dawson refused the request, indicating that Mr. Grant had already done so that day. Cst. Benedict warned Mr. Grant that failing to answer his questions would result in Mr. Grant being charged with obstructing a peace officer. He grabbed Mr. Grant’s arm near the wrist, removed a pen in his hand and handcuffed Mr. Grant behind his back. He orally advised Mr. Grant of his right to counsel and later read Mr. Grant his Charter rights from his notebook.

[40] Staff Sgt. André Bagi testified that he directed Sgt. Dawkins that he should “disengage” Mr. Grant if he became confrontational. Neither Cst. Choudry nor Sgt. Dawkins had any recollection of this direction. Sgt. Dawkins testified that even if he had received those instructions, he would have arrested Mr. Grant as long as he had reasonable and probable grounds to do so.

[41] Staff Sgt. Bagi also testified that some of his colleagues advised him that Mr. Grant was a follower of the movement of Freemen of the Land. He had no conversations with Mr. Grant, nor did he tear up his recognizance.

Applicant’s Position

[42] Mr. Singh submits that Sgt. Dawkins detained Mr. Grant after advising him that Cst. Moodie would not be available to take his fingerprints. He also submits that Staff Sgt. Bagi’s evidence should be given little weight, given that it is contradicted by Cst. Benedict’s testimony. Further, he states that Staff Sgt. Bagi was prejudiced against Mr. Grant because of his belief that Mr. Grant was a member of the Freemen of the Land. This prejudice, Mr. Singh submits, is evident in the surreptitious audio recording made by Mr. Grant of his interaction with the officers. Sgt. Dawkins is heard saying, “Let’s just put him in jail.” The recording also confirms that despite his testimony, Staff Sgt. Bagi was present in the room with Mr. Grant, Cst. Choudry and Sgt. Dawkins.

Analysis

[43] This incident raises the following issues:

1. Was Mr. Grant detained after Sgt. Dawkins told him that Cst. Moodie was not available to take his fingerprints?
2. If so, were the officers required to allow Mr. Grant to seek the counsel of his lawyer before he was arrested?
3. Was Mr. Grant obliged to provide “identifying data” before he provided his fingerprints?
4. Was Mr. Grant treated unfairly when Cst. Benedict arrested him for failing to provide his fingerprints?

Was Mr. Grant detained after Sergeant Dawkins told him that Cst. Moodie was not available to take his fingerprints?

[44] Section 501(3) of the Criminal Code provides that:

An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence …

[45] By virtue of s. 501(3) of the Code, when an accused attends at a specified place and time for ICA purposes, he or she is deemed to be in lawful custody charged with an indictable offence. To that extent, Mr. Grant was deemed to be in lawful custody when he attended the RCMP detachment on February 2, 2015, to comply with s. 2 of the ICA. Accordingly, Sgt. Dawkins did not detain Mr. Grant after the accused attended the detachment for identification purposes.

[46] Furthermore, the court ordered Mr. Grant to provide his fingerprints within two days of his release, although the releasing Justice of the Peace may have advised him that he could do so on the third day following his release. There was no requirement that Cst. Moodie be the police officer to take Mr. Grant’s prints. To that extent, her absence from the police division where Mr. Grant was required to provide his fingerprints was irrelevant and did not result in Mr. Grant’s detention. Accordingly, the officers were under no legal obligation to allow Mr. Grant to speak to counsel of his choice before complying with the requirement to provide his fingerprints.

Were the officers required to allow Mr. Grant to seek the counsel of his lawyer before he was arrested?

[47] In my view, the RCMP officers had no obligation to do so. Mr. Grant was under an obligation to comply with the officers’ requests that he comply with the ICA. They explained why they were requesting information from him concerning any natural or artificial marks on his body. Mr. Grant did not have the right to choose the questions he would provide answers to. Neither did he have the right to speak to his counsel before he was arrested.

Was Mr. Grant obliged to provide “identifying data” before he provided his fingerprints?

[48] Cst. Benedict had the authority, under s. 2 of the ICA, to request that Mr. Grant provide “identifying data” to him before taking Mr. Grant’s fingerprints.

[49] Section 2(1)(c) of the ICA provides that:

2 (1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council: (c) any person alleged to have committed an indictable offence, other than (i) an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, who is required under subsection 501(3) or 509(5) of the Criminal Code to appear for the purposes of this Act by an appearance notice, promise to appear, recognizance or summons; or (ii) an offence in respect of which proceedings were commenced by a peace officer under section 51 of the Cannabis Act.

[50] In R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, the Supreme Court of Canada noted at paras. 33-34 that:

33 The application of s. 2 of the Identification of Criminals Act is confined to persons in or deemed to be in lawful custody, who are charged with or have been convicted of an indictable offence. It should be observed that the common law permitted a number of other, in my view more serious, intrusions on the dignity of an individual or persons in custody in the interest of law enforcement. As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person; see R. v. Morrison (1987), 20 O.A.C. 230. This authority is based on the need to disarm an accused and to discover evidence. In the course of custodial arrest an accused may be stripped. Of particular relevance, height, weight and natural or artificial marks on the body, such as birth marks or tattoo marks, may be used for purposes of identification; see Adair v. M'Garry, [1933] S.L.T. 482 (J.)

34 These procedures have been permitted because of the felt need in the community to arm the police with adequate and reasonable powers for the investigation of crime. (emphasis added)

[51] Section 2(1) of the ICA, with the clause “or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council”, suggests that a person alleged to have committed an indictable offence may not only be fingerprinted or photographed but may be required to provide information which may be used for identification purposes. Such information necessarily includes natural or artificial marks on the body.

[52] To that extent, Mr. Grant did not have the right to refuse to comply with Cst. Benedict’s request regarding whether he had any tattoos or identifying marks. His failure to comply with the officers even after being cautioned, gave the officer the requisite grounds to arrest Mr. Grant for failing to comply.

[53] Finally, the officers arrested Mr. Grant not because they believed that he was a Freeman of the Land, but because he had refused to comply with Cst. Benedict’s request for identifying data. It is this refusal that triggered the events that led to Mr. Grant’s arrest and subsequent incarceration.

February 5, 2015, Incident

[54] Staff Sergeant Bagi, accompanied by two RCMP officers, attended the Brampton courthouse on February 5, 2015, to obtain fingerprints from Mr. Grant. Mr. Grant testified that prison officers pushed him into a room, although not in an abusive way. When Mr. Grant told the officers that he was not going to give his fingerprints and photographs, they got him on the ground and tried to bend his arms and fingers. He did not suffer any serious injury. Two officers brought him to a fingerprint machine. Mr. Grant claims that a prison guard twice jabbed him in the ribs before taking his fingerprints. She called him a “fucking Freeman” and asked him if he lived in a tree. He agreed to sign his name as James Grant. Staff Sgt. Bagi denied that any guard or officer struck Mr. Grant while he was being fingerprinted.

[55] In light of Mr. Grant’s continued failure to cooperate with the officers who were trying to obtain his fingerprints, s. 2(2) of the ICA gave them the authority to use reasonable force to get him to do so.

[56] Mr. Singh submits that I should infer that excessive force was applied to Mr. Grant to obtain the fingerprints. However, by his own admission, Mr. Grant did not suffer any serious injury. Furthermore, he testified that the prison guards who pushed him into the fingerprint room did not do so in an abusive way. For the above reasons, I find that the RCMP officers and prison guards who were involved in taking Mr. Grant’s fingerprints on February 5, 2015, did not violate his s. 12 Charter rights.

Incident on November 9, 2015

[57] The court security officers prevented Mr. Grant from entering the Brampton courthouse with a five-foot flagpole with a flag attached to it. Police officers, including Det. Sgt. Andrew Cooper, tried to persuade Mr. Grant that he could not enter the building with the flagpole because it could be used as a weapon. Sgt. Cooper testified that Mr. Grant would not take no for an answer. His counsel spoke to him, but Mr. Grant remained in the vicinity of the building’s entrance still clutching his pole. He testified that entry into the courthouse with the flagpole was an attempt to establish his authority. He noted further that the flag represented “the administration of my home.”

[58] Mr. Grant testified that he did not wish to go through the metal detector for religious reasons. Instead, he asked for a pat down search before entering the building. The officer declined. Mr. Grant then publicly announced that they were denying him entry into the building. Officer Cooper and two other guards then “rushed” him outside the entrance to the courthouse. Mr. Grant testified that Cst. Low grabbed the flag and bent the flagpole and stomped on the flag before arresting him.

[59] A surveillance video played during the hearing showed Officer Cooper pushing Mr. Grant out of the courthouse. The video does not show any officer bending the flagpole or stomping on Mr. Grant’s flag. Cst. Buckley, Cst. Low and Officer Cooper all testified that they did not see anyone bend the flagpole or stomp on the flag.

[60] Mr. Singh submits that the officers violated Mr. Grant’s s. 2 Charter rights and used excessive force against him. However, there is not a scintilla of evidence that Mr. Grant’s religion, whatever it may be, played a role in his extraction from the court building. He simply refused to accept that he could not enter the courthouse with a flagpole that could be used as a weapon. He could have easily defused the situation by taking the pole to his vehicle before returning to the building. Mr. Grant chose not to do so.

[61] Neither is there any evidence of excessive force used against Mr. Grant. Det. Sgt. Cooper is a huge man, well over 6 feet fall and over 250 lbs. Mr. Grant would have had visible injuries if Officer Cooper had struck him. The absence of any visible injury confirms that other than being pushed outside, no gratuitous violence was applied to Mr. Grant by any security or police officer.

[62] For the above reasons, I find that Mr. Grant’s ss. 2 and 12 Charter rights were not violated during the incident.

The Maplehurst Incident on November 10, 2015

[63] This incident raises the following issues:

1. Did the prison officers have the authority to strip search Mr. Grant?
2. Did Mr. Grant have the right to refuse to be strip searched?
3. Was the Maplehurst Correctional Complex justified in using force to strip search Mr. Grant?
4. Was the force used to strip search Mr. Grant reasonable?

[64] Mr. Grant testified in this hearing that he did not wish to be strip searched following his arrival at Maplehurst Correctional Complex (“MCC”) because he was tired. The guards took him to a dry cell and then forcefully removed his socks. During the night a guard brought him sheets. He was woken by a loud bang the next morning. Masked men with riot shields ordered him to strip. He refused. He denied that he told the men, “Fuck you, you have no authority over me”. He also denied that he was given three warnings that if he refused to be strip searched, force would be used against him. Rather, he asked the masked guards, “who’s your authority.”

[65] The men threw pepper spray into the cell. They opened the hatch on the door and sprayed him in the face. They entered his cell, pressed him against the wall and put him to the floor. The men then started to beat him. They handcuffed him, stripped off his clothes, and placed him in a nearby shower. They twisted his arm causing the handcuffs to cut into his wrists. One guard punched him in the eye and told him to “shut the fuck up.” Following his release from court the following day, Mr. Grant’s spouse took pictures of his injuries, which consisted of cuts and bruises to his knees, bruising on his wrists, redness to an eye, a back injury and a broken rib. He treated the rib injury by applying an ice pack to the area. The injury took two months to heal.

[66] Prison officer Charles Grabhek testified that he was a member of the Institutional Crisis Intervention Team (“ICIT”) that attended at Mr. Grant’s cell on November 10, 2015. The team leader told Mr. Grant that chemical weapons would be used if he did not consent to be strip searched. The leader gave three such warnings and told Mr. Grant on the third occasion, “Strip off all your clothes and comply with my orders. This is your third warning.”

[67] Mr. Grant did not comply. A pepper spray attached to a wand was placed under the door of Mr. Grant’s cell. Mr. Grant did not budge. The team leader issued another warning to Mr. Grant. He got no response. The team leader opened the door. An officer applied pepper spray to Mr. Grant’s face. Mr. Grant was ordered to remove his clothing. He did not comply.

[68] The first guard who entered the cell used a shield to pin Mr. Grant either on the bunk or on the floor. Mr. Grant was then handcuffed behind his back and placed in leg irons to prevent him from resisting. His clothing was changed, and he was then placed in the shower for de-contamination purposes. Officer Grabhek testified that no one struck Mr. Grant, either with a shield, baton or fists, or kicked him. The officer could not recall if Mr. Grant was stripped of his clothing in the cells or in the shower.

[69] Officer Brandon Black testified that inmates are strip searched every time they come to the MCC. If an inmate repeatedly refuses to be strip searched, the supervising prison officer asks for the ICIT to be activated.

[70] The ICIT attended at Mr. Grant’s cell at approximately 10:04 a.m. The team leader gave Mr. Grant three warnings regarding the use of force if Mr. Grant continued to refuse to be strip searched. After the third refusal, pepper spray was first applied by wand, then to Mr. Grant’s face. After entering the cell, Officer Black pinned Mr. Grant with his shield on his bed, while his colleagues subdued Mr. Grant, who was then handcuffed and placed in leg irons. They removed Mr. Grant’s clothing and placed prison clothing on him. The officers then placed Mr. Grant in a shower to reduce the effects of the pepper spray. They gave Mr. Grant a new set of prison clothing after he showered. No officer struck or kicked Mr. Grant who, Officer Black testified, never complained about injuries.

[71] The officer testified that he never heard any mention about Mr. Grant being a “Freeman of the Land”. He conceded that he had a poor recall of the incident but denied fabricating a statement that Mr. Grant stated, “Fuck you, you have no authority.” He denied seeing anyone punching Mr. Grant in the shower, kicking him or striking him in the forehead.

[72] Sgt. Andrew Gorbacz testified that the MCC’s Standing Orders indicate that every arrestee admitted to a provincial facility is required to be strip searched on admission. There is no exception to this general rule based on religious beliefs.

Analysis

[73] This incident raises the following issue:

(a) Did the prison guards have the legal authority to strip search Mr. Grant?

Standing Orders

[74] Section 05 01 01 0 of the MCC Standing Orders provide that, “Every inmate and his/her property must be thoroughly searched upon admission.” It further states that:

An inmate who refuses to be searched may be placed in segregation until prepared to be searched, or until there is no longer a need to search the inmate. Upon completion of the search, the inmate is allowed to shower and is issued institutional clothing, toiletries, towel and bedding.

[75] Standing Order 07 00 17 0 provides that:

When an inmate refuses to be searched or resists a search, the inmate will be segregated from other inmates until the inmate submits to the search or until there is no longer a need to search the inmate.

[76] Standing Order 03 00 20 0 indicates that the ICIT “is to assist in the peaceful resolution of an institutional crisis through a disciplined show of force.” It further provides that:

An ICIT may be authorized to use physical force when there is an immediate threat to the safety of any person or the security of the Maplehurst Correctional Complex or community, and there is no reasonable alternative available to ensure a safe environment.

[77] The MCC’s Standing Orders give prison officials the right to strip search Mr. Grant upon his admission to the institution. Mr. Grant maintained that he did not have to submit to a strip search because he had not been strip searched when admitted to the institution on February 2, 2015. I have difficulty accepting his testimony to that effect, given that all the prison officials who testified in this hearing indicated that the strip search of a person being admitted to the MCC is mandatory, with no exceptions.

[78] In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 90, the Supreme Court of Canada noted that strip searches are inherently humiliating, very intrusive and therefore “cannot be carried out simply as a matter of routine policy”. However, the court noted, at para. 96, that:

It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment.

[79] The court also noted at para. 75 that while routine strip searches are unreasonable, this rule does not apply to prisons: see also R. v. Aziz, 2011 ONCJ 124, at paras. 26-28.

[80] See also R. v. Jerace, 2011 ABQB 50, 507 A.R. 337, at para. 50; R. v. McLeod, 2013 YKSC 117, at para. 87; R. v. Logan, 2005 ABQB 321, 48 Alta. L.R. (4th) 330, at para. 94; R. v. Russell, 2018 ABQB 21, 22 M.V.R. (7th) 198, at para. 79; R. v. Madray, 2013 ONSC 5364, at para. 64; R. v. Hotte, 2015 ABQB 323, 617 A.R. 201; R. v. Thompson, 2013 ONSC 5915, at paras. 46-56; and R. v. Vixaysongkham, 2007 BCSC 183, 151 C.R.R. (2d) 153, at paras. 27-38.

[81] Security measures at a custodial facility are not served a la carte, to inmates being admitted into the facility. The fact that Mr. Grant was being taken to the court on November 10, 2015, did not relieve him from the obligation to submit to a strip search. The officers testified that the jail guards from the court would not accept an inmate if he or she had not been strip searched. This is understandable given that safety is the paramount consideration in the strip search of an inmate in a custodial setting.

Did Mr. Grant have the right to refuse to be strip searched?

[82] There was no justification for Mr. Grant to refuse to be strip searched. The prison guards who dealt with him repeatedly advised him that he was required to do so for safety reasons.

Was the MCC justified in using force to strip search Mr. Grant?

[83] The institution followed its established procedure in deploying the ICIT to strip search Mr. Grant. It obtained the necessary authorization to engage the ICIT. I find that prison officials spoke to Mr. Grant at 7:00 a.m. and again at 8:30 a.m. on November 10, 2015, to obtain his consent to a strip search. These efforts run contrary to Mr. Singh’s submission that the MCC had no intention of bringing Mr. Grant to court by 10:00 a.m. given that the ICIT only attended at his cell at 10:05 a.m.

[84] Additionally, when the ICIT arrived at Mr. Grant’s cell at 10:05 a.m., they gave him three warnings that they would have to rely on force to conduct a strip search if he continued to refuse to do so voluntarily. In light of Mr. Grant’s continued refusal to submit to a strip search, the ICIT members were justified in resorting to the use of force to strip search Mr. Grant.

Was the force used to strip search Mr. Grant reasonable?

[85] Mr. Grant testified that upon entering his segregated room, all members of the ICIT threw him to the ground, punched and kicked him. He also testified that a member of the team punched him in the eye, causing redness, and that as a result of the violence used to strip search him, he suffered a broken rib, redness in one eye, bruises in the areas of his wrists where he was handcuffed and a bruise to his forehead.

[86] The members of the ICIT who testified in this application all denied applying gratuitous force to Mr. Grant or seeing any member of their team do so. They testified that Mr. Grant did not voluntarily place his hands behind his back when asked to do so and force was required to get Mr. Grant to comply with their orders. Concerning Mr. Grant’s eye injuries, the redness to Mr. Grant’s eye could have been caused by the pepper spray that was directly applied to his face in order to subdue him.

[87] The evidence of Nurse Shakespeare, who saw Mr. Grant after the ICIT removed him from the cell, is not helpful in determining whether Mr. Grant suffered injury on account of being beaten by some members of the ICIT. He said that he did not examine Mr. Grant. He merely asked Mr. Grant whether he had any injuries but got no response. A surveillance video showed Mr. Grant bent over while he was led from the segregation room. Therefore, Nurse Shakespeare would not have gotten a good look at Mr. Grant and was not in a position to ascertain whether Mr. Grant had suffered any injuries as a result of his interaction with the ICIT.

[88] Mr. Grant’s spouse took photographs of the injuries he is alleged to have suffered at the hands of the ICIT. There is no doubt that he suffered bruising to his wrists, which were likely caused by the handcuffs. He also suffered bruising to his legs, which could have been caused by being held down on the floor.

[89] Regarding the redness to Mr. Grant’s left eye, this could have been caused by the pepper spray that was applied to his face. I am not convinced that the redness was caused by a punch to the eye, given the absence of any swelling or bruising around the eye.

[90] While Mr. Grant claims that he suffered a broken rib, as a result of the encounter, there is no medical report confirming that he suffered this injury. I am not satisfied with his explanation that he did not see a doctor because his OHIP card had expired or because a doctor declined to document his injuries upon learning that the injuries involved the police.

[91] On the evidence before me, I cannot conclude, even on a balance of probabilities, that the ICIT used excessive force before strip searching him. Accordingly, he has failed to prove that his rights pursuant to ss. 2 and 12 of the Charter were violated when he was forcefully strip searched at the MCC on November 10, 2015.

Section 15 Charter Rights

[92] Mr. Singh submits that the state agents who dealt with Mr. Grant in the incidents described above violated his s. 15 Charter rights because they stereotyped him as a radical member of the Freemen of the Land and resorted to arbitrarily and capriciously using violence against him.

[93] Section 15 of the Charter provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethic origin, colour, religion, sex, age or mental or physical disability.

[94] In my view, no officer or prison guard discriminated against Mr. Grant on the basis of any of the enumerated grounds under s. 15 of the Charter. In each of the incidents described above, the officers, whether police, prison guards or customs officers, tried to explain to Mr. Grant what was required of him after he was charged with importing cocaine on January 24, 2015. The fact of the matter is that Mr. Grant refused to cooperate with authorities when he reported for fingerprints on February 2, 2015, when he attended court on November 9, 2015, and when he was taken to the MCC later that day and again on November 10, 2015. In all of these incidents, state agents were merely seeking to enforce rules and procedures which apply to all persons who have been charged with indictable offences. To that extent, there is no evidence before me that Mr. Grant’s s. 15 Charter rights were violated during any of the incidents described above.

CONCLUSION

[95] For all the above reasons, the application is dismissed.

André J.

Released: June 11, 2019