Court File and Parties

COURT FILE NO.: CR-17-205 DATE: 20190626 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – RONALD BYFIELD Applicant

COUNSEL: Phillip Brissette, for the Respondent Justin Yuen, for the Applicant

HEARD: June 7, 2019

RULING ON APPLICATION PURSUANT TO SS. 8, 9 AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

DiTOMASO J.

The Charge

1The Applicant, Ronald Byfield, is charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The Application

2Mr. Byfield contends that the charge arises from an unlawful and arbitrary detention, followed by an illegal search of his person at the time of his arrest on January 9, 2017 in the City of Barrie by members of the Barrie Police Service. He submits that the officers did not have reasonable and probable grounds for arrest and violated his rights under s. 9 of the Charter.

3Further, he submits the officers conducted a public strip search in the Duckworth Plaza parking lot and violated his rights under s. 8 of the Charter.

4Mr. Byfield seeks an order excluding all evidence (cocaine) seized from his person as a result of these Charter breaches.

5The Respondent Crown takes the position there were no breaches of ss. 8 or 9 of the Charter. However, should this court find there were, it is submitted there is no basis to support the exclusion of evidence when balancing the factors to be considered under s. 24(2) of the Charter.

Factual Overview

6On January 9, 2017 (at 11:40 a.m.) Detective Constable Fitzgerald received timely information from a confidential human source (CHS) that there was an individual named “Tristen” trafficking drugs from 144 Napier Street, Barrie, Ontario. This CHS had never given information to DC Fitzgerald before. The CHS described Tristen as: a black male, in his 20s, afro style hair, average build. DC Fitzgerald had a conversation about this information with Detective Constable Ford. DC Ford advised DC Fitzgerald that, approximately one year prior, he had received information from a proven and reliable CHS that several black males were attending Barrie to traffic cocaine. And that one of those persons was a person named Tristen. Tristen was described by DC Ford as a black male, 5’8” tall, with an afro hairstyle. Also, Tristen always wore a Chicago Bulls jacket.

7Later that day (at 12:05 p.m.), DC Fitzgerald set up surveillance on the residence at 144 Napier Street in an attempt to further investigate the information he received. Upon arriving at the residence, DC Fitzgerald noticed a white Honda Civic (Ontario Plate No. CSAJ 428) and a red Ford Edge (Ontario Plate No. BYPT 362) parked in the driveway. After noticing those two specific vehicles in the driveway, DC Fitzgerald requested other officers (PC Calleja, DC Ford, Sgt. Grant and DC Davies) to assist him with surveillance.

8At 1:59 p.m. DC Davies saw a black male, with a large afro, wearing all red, exit the front door of the residence at 144 Napier and get into the driver’s seat of the Ford Edge that was parked there. This male shuffled around through things in the car for a couple of minutes then he returned into the residence.

9At 2:34 p.m. Sgt. Grant observed a white Dodge Journey (Ontario Plate No. BYJD 563) (the “Byfield vehicle”) park in the driveway of that same residence. The driver sat in the car and waited. That vehicle was registered to Ronald Byfield – who was known to DC Fitzgerald as being involved in the selling of narcotics from previous Barrie Police investigations. A short time later, the male wearing all red exited the residence at 144 Napier Street and got into the front passenger seat of the Byfield vehicle.

10At 2:49 p.m., the male wearing all red and the driver of the Byfield vehicle switched positions. Now the person in red was driving and the male who drove the Byfield vehicle to the residence was now seated in the front passenger seat.

11At 2:50 p.m. the Byfield vehicle left 144 Napier Street and was driven to the Duckworth Plaza at the intersection of Grove and Duckworth Streets in Barrie, Ontario. The Byfield vehicle parked at the plaza near the pharmacy. After parking, and within minutes, a white male person was observed leaving a four-door green vehicle and going directly into the rear driver’s seat of the Byfield vehicle. After one minute the white male left the Byfield vehicle and went back to his car. The Byfield vehicle then drove away from the plaza.

12At no time, after parking at the Duckworth Plaza, did the driver or front passenger get out of the Byfield vehicle and visit any of businesses at the plaza. At this point DC Fitzgerald felt he had reasonable and probable grounds to believe a drug transaction took place between the white male from the green car and the two parties in the Byfield vehicle.

13At 2:55 p.m. a traffic stop was ordered and the Byfield vehicle was stopped after it left the Duckworth Plaza. The front passenger of the vehicle was identified as Ronald Byfield and the driver (wearing all red) was identified as Jaivon Prince-Skyers. During a search incident to arrest of Ronald Byfield, PC Kevin Calleja located a package containing over 184 grams of cocaine on Ronald Byfield in his underwear/groin area.

The Evidence

14On the application, the following Barrie Police Service officers testified: DC Ryan Davies, DC Justin Ford, DC Randy Fitzgerald, PC Kevin Calleja, Sgt. William Grant and PC Bradley Traves. Aleesha Duhaney, Mr. Byfield’s sister, testified on behalf of the Applicant, Mr. Byfield. The following is a summary of their evidence.

Detective Constable Ryan Davies

15Detective Constable Davies has been a police officer with the Barrie Police Service for 10 years, primarily with the Street Crime Unit. His role in this case involved surveillance and assistance with arrest. He also seized a cell phone. He made contemporary notes without deletion, addition or amendment. He testified that he had independent recollection of this matter.

16He testified that on January 9, 2017, he was a Detective Constable with the Street Crime Unit. He received information from Detective Constable Fitzgerald regarding drug dealing at an address in Barrie, namely 144 Napier Street. He assisted with surveillance at that address.

17He was a member of a team of officers consisting of Sgt. Grant, DC Ford, DC Fitzgerald and PC Kevin Calleja.

18He attended at 144 Napier Street and his observations were reported to DC Fitzgerald, who was the central note-taker. Three pages of DC Fitzgerald’s notes were put to the witness.

19The information received by DC Davies from DC Fitzgerald was about Mr. Byfield. That information disclosed that Mr. Byfield was a known drug dealer in Barrie and operated a white Dodge Journey SUV, licence plate BYJD 563.

20Further, he was known to attend drug residences in downtown Barrie. Information from a CHS also revealed that Mr. Byfield was in possession of a firearm. The CHS was not DC Davies’ source, and he had no idea concerning the date of that information. DC Fitzgerald did not tell him anything else.

21He attended the area of 144 Napier Street at 12:23 p.m. and set up surveillance with the team to observe the residence.

22He observed a male black person with a large afro hairdo, dressed all in red, exiting the front door of the residence and attending the driver’s side of a Ford Edge motor vehicle. That male then exited the Ford Edge motor vehicle and re-attended inside the residence. He was not in the car long – maybe a matter of minutes.

23He then observed the Byfield vehicle, which he had observed driving in the City of Barrie. He saw it later at the take-down arrest at Grove Street and Sylvia Street, near the Duckworth Plaza.

24He assisted with the arrest of the male in the Byfield vehicle. That vehicle had been blocked on Grove Street between Duckworth and Sylvia Streets. He approached the vehicle from the front, close to the driver’s door. He was assisted by other officers. He had no other dealings with Mr. Byfield that day. He did not speak to Mr. Byfield.

25In cross-examination, he testified that he received the information from DC Fitzgerald, not at the station but at the Napier Street residence. When he saw the Byfield vehicle, he had information in his head (which he had read before), concerning Mr. Byfield from the beginning of 2016. He did not know who authored that report. DC Davies testified that he had not seen Mr. Byfield before January 9, 2017. This was the first day that he personally saw Mr. Byfield.

26He described how he was operating an unmarked police vehicle, which he angled in front of the Byfield vehicle to block it. There was a marked police cruiser behind the Byfield vehicle. He described traffic as being very heavy in the area of Grove Street between Sylvia and Duckworth Streets. There were civilian cars everywhere. There were also other unmarked police vehicles in the vicinity. He told the occupants of the Byfield vehicle to keep their hands up. However, he did not deal with these individuals. He did observe Mr. Byfield and the other occupant of the vehicle, Mr. Prince-Skyers, being arrested on Grove Street. After the arrest, DC Davies stayed with the Byfield vehicle. The two occupants of that vehicle were handcuffed and he was not with them after their arrest.

27The Byfield vehicle was taken into the parking lot close to Sylvia Street. He stayed with this vehicle until it was towed away. Put to him was Exhibit # 1, being a Google map of Grove and Sylvia Street. He identified where the take-down occurred, where the two occupants of the Byfield vehicle went after the take-down and the location where the Byfield vehicle was taken.

28He made no observations of any search of any of the occupants.

Detective Constable Justin Ford

29DC Ford has been a police officer with the Barrie Police Service since 2006. In January 2017, DC Ford was with the Street Crime Unit. He had received information from a CHS and had also set up surveillance at 144 Napier Street.

30He was not present when Mr. Byfield was actually arrested. DC Ford was trailing behind.

31DC Ford made contemporary notes regarding this matter, without addition, deletion or alteration and he had independent recall of events.

32DC Fitzgerald received anonymous information about a male black man by the name of Tristen who was dealing crack cocaine at 144 Napier Street. Tristen was a black male in his 20s with average build. DC Ford had received information that one year prior, Tristen was involved in drug trafficking. He was described as a male black, 5 foot, 8 inches tall, with an afro hairstyle, who always wore a Chicago Bulls jacket. He believed that Tristen sold cocaine. He testified that the CHS at that time was “8 times proven”.

33After providing this information to DC Fitzgerald, DC Ford was part of a small team that was set up to observe at 144 Napier Street. While he was not on site, he was mobile in the area.

34After the arrest on Grove Street, he saw the Byfield vehicle. It was already stopped in heavy traffic. It was DC Ford who moved the Byfield vehicle into the Tim Horton’s parking lot in the Duckworth Plaza. He then called uniformed officers to attend and tow the truck away. While he was present on the arrest of the two occupants of the Byfield vehicle, he was not directly involved in the search of those two males. He was privy to information about a bulge in Mr. Byfield’s crotch area. Everyone was in an area beside a large snowbank in the Tim Horton’s lot. He did not see the search of the two occupants of the Byfield vehicle and he did not deal with Mr. Byfield. He stood by while Mr. Byfield was under arrest. He stood with Officer Calleja.

35In cross-examination, DC Ford confirmed that DC Fitzgerald was the central note-taker and that information was passed on to him for recording. He testified that he was dressed in plain clothes and was operating an unmarked police vehicle.

36He was cross-examined about the CHS information that he had received approximately one year prior. The evidence he gave about the source being “eight times proven” meant that that person gave eight pieces of information that led to arrests and charges. He did not know if that information led to convictions or if the charges were withdrawn. All he knew was that there were eight drug investigations that led to charges.

37DC Ford confirmed that he provided information to DC Fitzgerald about a black male named Tristen, who had afro hairstyle and who always wore a Chicago Bulls jacket, and that this person dealt drugs in Barrie, specifically cocaine.

38There was nothing to confirm that the Tristen from one year prior was the same Tristen that was of concern to DC Fitzgerald. There was nothing to confirm that it was the same individual. It was possible that there were two Tristens trafficking crack cocaine in Barrie. DC Ford testified that this was the reason why the surveillance was done.

39When he arrived at the take-down on Grove Street, other officers were already there, DC Davies, Sgt. Grant, DC Fitzgerald and PC Calleja. They were there before he arrived at the arrest. The occupants of the Byfield vehicle were already arrested and he observed them being cuffed and they were on the ground.

40His job was to get the Byfield vehicle off the roadway.

41He learned that PC Calleja searched Mr. Byfield and PC Calleja had located drugs on Mr. Byfield.

42After he moved the Byfield vehicle into the parking lot, he returned to his own vehicle and made a radio call requesting uniformed officers to attend to tow the vehicle away.

43After the call for the uniformed officers and tow truck, he was in the immediate area where he was told that drugs were found by PC Calleja. He did not see anyone search Mr. Byfield. DC Ford was not part of any search.

44He testified that PC Calleja and Officer Traves had taken custody of Mr. Byfield. Mr. Byfield underwent a pat-down. Officer Traves found a bulge and PC Calleja located drugs on Mr. Byfield. He could not recall observing Officer Traves do a pat-down search. He could not recall what Mr. Byfield was wearing on that day and made no note of it. He could not recall if there was a debriefing after this take-down.

45While he was mobile, he was not located at 144 Napier Street. He did not know what happened at that address, other than what he heard on the police radio. He did not have “eyes” on the house. He had knowledge of what another officer observed at the Duckworth Plaza because he heard this over the radio. However, DC Ford made no observations at the Duckworth Plaza until he arrived.

46He agreed that officers dressed in plain clothes were Officers Traves, Fitzgerald, Davies and Sgt. Grant. He had not seen any photos taken either at 144 Napier or at the scene of the take-down at Grove and Sylvia Streets.

47In re-examination, he believed that the officers at the take-down were all wearing their police vests and that DC Ford was wearing his.

DC Randy Fitzgerald

48DC Fitzgerald has been a police officer for 17 years; 8 years with the Barrie Police Service. In January 2017, he was with the Street Crime Unit. He was the officer in charge of the investigation in this case. He made contemporary notes without addition, deletion or amendment. He had independent recall of this matter.

49While at the Barrie Police Service station, he received an anonymous telephone call about possible drug trafficking. He did not know this CHS, as he had not dealt with this person before. He did not know about the informant’s credibility.

50He was informed about a person, known as Tristen at 144 Napier Street. Tristen was described as male, black, approximately 20 years old with average build. He was currently driving a white Honda Civic. He was also told there was a red SUV at the residence and Tristen and an unknown male were cooking crack in the basement. A buyer would use the front door to the left or the side door.

51After receiving this information, DC Fitzgerald passed along what he had learned to DC Ford. DC Ford advised him that approximately one year prior, he had received information from a reliable CHS that male persons attended Barrie dealing crack cocaine. One of those persons was a male black named Tristen, who was observed wearing a Chicago Bulls jacket.

52DC Fitzgerald attended 144 Napier Street. He observed a white Civic motor vehicle in the driveway, licence plate number CSAJ 428. Behind it was parked a red Ford Edge motor vehicle, licence plate number BYPT 362. Observing these vehicles in the driveway helped to corroborate information received from the anonymous informant that the presence of these vehicles indicated that individuals were cooking crack at 144 Napier Street. DC Fitzgerald then asked for assistance regarding surveillance. Other officers in the Street Crime Unit were Officers Calleja, Davies, Ford and Sgt. Bill Grant.

53DC Fitzgerald was the central note-taker.

54At 1:59 p.m. he heard over the radio from badge number 44, that a male, black, with a large afro exited the front door and entered the red Ford vehicle. He was observed shuffling around and then returned to enter the residence.

55At 2:34 p.m., he received information from Sgt. Grant that the Byfield vehicle, licence plate number BYJD 563 was observed parking in the driveway at 144 Napier Street. The owner of this vehicle was Ronald Byfield, who was known to the police from a previous drug investigation. The previous investigation involved Officer Davies as the Officer in Charge (the “OIC”). It was an investigation involving guns and drugs one year earlier.

56At 2:49 p.m., a male dressed all in red entered the Byfield vehicle. The male occupying the driver’s seat and the male dressed all in red switched positions in the vehicle. The male dressed in red became the driver and the previous driver of the Byfield vehicle then became the front seat passenger. The location of the person in the passenger seat is of importance as it would give that person the ability to conduct a drug transaction with some measure of security.

57He then testified that at 2:50 p.m. the Byfield vehicle reversed out of the driveway of 144 Napier and proceeded on route to the vicinity of Grove and Sylvia Streets, near the Duckworth Plaza. The Byfield vehicle was observed entering the Duckworth Plaza, travelling north to an area in front of a pharmacy and then parking near a green dumpster. This information was relayed to him by Sgt. Grant.

58Marked as Exhibit # 2 on the voir dire was a sketch prepared by DC Fitzgerald indicating where the dumpster, pharmacy and Tim Horton’s was located in the Duckworth Plaza.

59Sgt. Grant advised that an unknown white male had driven a green four-door vehicle into the plaza and parked his vehicle near the Byfield vehicle. An unknown white male left the green car and got into the rear driver’s side of the Byfield vehicle. After approximately one minute, that same unknown white male returned to his green motor vehicle. There was no information that anyone in the Byfield vehicle attended any business at the Duckworth Plaza. The occupants of the Byfield vehicle did not exit their car. Then the Byfield vehicle exited the parking lot, turned southbound on Sylvia and then westbound on Grove Street. It was at that time that the police traffic stop of the Byfield vehicle was concluded.

60DC Fitzgerald testified that there were grounds to stop the Byfield vehicle. He had received anonymous information regarding a location (144 Napier Street) where drugs were sold. The police attended at the location and observed a white Honda Civic and a red SUV. Police were told that if the red vehicle was there, then individuals would be cooking crack in the basement. This was corroborated by his own personal observation.

61He also had information from DC Ford about a CHS providing similar information, namely about a black male person named Tristen, with an afro hairstyle, wearing a Chicago Bulls jacket, travelling from Toronto to Barrie to traffic in cocaine.

62Further, DC Fitzgerald testified that he saw Mr. Byfield attend the residence. DC Fitzgerald had knowledge of a previous drug investigation involving Mr. Byfield. This information further strengthened his grounds.

63He further testified that neither of the occupants of the Byfield vehicle exited their vehicle at the parking lot where they were parked next to the dumpster. He described the meeting at that location as very short and in a discrete portion of the parking lot. He believed that he had formulated grounds then to initiate the traffic stop and arrest.

64He also saw the switch in the driveway of 144 Napier, where Mr. Byfield moved from being the driver to the passenger of that vehicle. Mr. Byfield’s associate, dressed in red, became the driver of the Byfield vehicle. The information that DC Fitzgerald had about the driver was that Tristen always wore red. His wearing the Chicago Bulls clothing factored into his grounds. The person known as Tristen was dressed all in red and had a very large afro hairstyle.

65He described how the Byfield vehicle was stopped with DC Fitzgerald pulling up on the driver’s side. Officer Calleja attended the passenger side. DC Fitzgerald had no contact with Mr. Byfield during the arrest phase.

66After DC Fitzgerald dealt with the driver of the Byfield vehicle, he transferred custody of that person to PC Scott.

67Traffic was being blocked on Grove Street so officers started moving vehicles into the Duckworth Plaza parking lot.

68In the parking lot, DC Fitzgerald testified that Officers Calleja and Traves searched Mr. Byfield.

69Shortly after the search, Officer Calleja advised DC Fitzgerald that cocaine or crack was found on Mr. Byfield. DC Fitzgerald testified that he did not observe the search of Mr. Byfield. He was standing to the side. The search took place near a large snowbank at the corner of Grove and Sylvia Streets in the Duckworth Plaza parking lot. A police vehicle driven by Officer Traves was located there.

70In cross-examination, DC Fitzgerald testified about the anonymous tip that he had received at the station. He also spoke with Officer Ford, who shared with him information about Tristen. He agreed that Tristan could be two different people. He testified that he attended 144 Napier Street alone in an unmarked police vehicle to conduct surveillance. He was dressed in plain clothes. He testified about the tip that he had received – if a red SUV was at 144 Napier Street, Tristen and an unknown male would be cooking cocaine in the basement.

71DC Fitzgerald knew what Mr. Byfield looked like from a mug shot. However, he did not see Mr. Byfield until the take-down. He agreed that there was nothing to associate Mr. Byfield with the Napier Street address, except that Mr. Byfield was there at the time.

72DC Fitzgerald was cross-examined about his knowledge of the Duckworth Plaza, the different entrances and the location of the Tim Horton’s and the pharmacy.

73He testified that the take-down took place on January 9, 2017 in the afternoon. He testified that there were civilians in the plaza and that the police did not control the flow of traffic in and out of the Duckworth Plaza parking lot, which had three entrances.

74He was asked whether he could see into the Byfield vehicle at 144 Napier. He testified that the windows were heavily tinted.

75He followed the Byfield vehicle to the northeast part of the parking lot of the Duckworth Plaza where this vehicle parked near the pharmacy and dumpster. Sgt. Grant took over from there.

76He did not hear Sgt. Grant say that the unknown white male had returned to the green motor vehicle with anything in his hand. He did not hear Sgt. Grant say that person had anything in his hand as he walked toward the Byfield vehicle.

77DC Fitzgerald was wearing a load-bearing vest, but did not have his firearm drawn. He did not recall if any other officers had their firearms drawn.

78He could not recall exactly when a call was made for a uniformed cruiser in the area, as the Byfield vehicle left the Napier Street address. It could have been before, during or when the driver of that vehicle left.

79DC Fitzgerald testified that he had been trained to do strip searches at police college with no additional training since.

80He was questioned further about the take-down on Grove Street. Officer Scott, in a marked cruiser, assisted to effect the stop. He parked his vehicle behind the Byfield vehicle. DC Fitzgerald drove his vehicle to the driver’s side of the Byfield vehicle to effect the arrest of Mr. Byfield. The driver of the Byfield vehicle, Mr. Prince-Skyers, underwent a cursory pat-down search on Grove Street. Officer Scott transferred Mr. Prince-Skyers to the Barrie Police cells.

81While PC Scott’s cruiser was still on Grove Street, there was a lot of pedestrian and vehicular traffic in that area. He knew that his vehicle was there and that Officers Davies and Calleja would have their vehicles in that area as well. He did not know where Sgt. Grant and Officer Ford were.

82He testified that Officer Calleja was on the other side of the Byfield vehicle dealing with Mr. Byfield.

83As OIC, he did not apply for a search warrant for 144 Napier Street. He did not return to the Duckworth Plaza to obtain CCTV footage.

84It was his belief that a drug transaction had occurred. There is no CCTV footage capturing a drug transaction in the Byfield vehicle.

85DC Fitzgerald observed Officers Calleja and Traves having custody of Mr. Byfield. DC Fitzgerald was in the area about 10 to 20 feet away from Officer Calleja. DC Fitzgerald believed that he was in his vehicle during the time that Mr. Byfield was searched. He did not observe any search of Mr. Byfield taking place. He did not see Officer Calleja rearrange Mr. Byfield’s clothing.

86In re-examination, DC Fitzgerald testified that where the Byfield vehicle was parked, other vehicles would only access the pharmacy.

PC Kevin Calleja

87PC Calleja has been a police officer for approximately 19 years - 15 years with the Barrie Police Service.

88In January 2017, he was a Detective Constable in the Street Crime Unit. He assisted with surveillance in respect of this case. He managed the exhibits and also undertook a search. He made contemporaneous notes, without deletion, amendment or addition. He has independent recall of this matter.

89His involvement began on January 9, 2017. He was advised by DC Fitzgerald to assist in surveillance at 144 Napier Street with respect to a drug investigation.

90He attended at that address and observed two vehicles in the driveway – a white Honda Civic, behind which was parked a Ford Edge motor vehicle. He was not “on the eye” and did not have direct observations.

91He received information from DC Fitzgerald that the Byfield vehicle was to be stopped and the target, Mr. Byfield, was to be arrested. Officer Calleja knew Mr. Byfield’s name from a previous drug investigation.

92At 2:55 p.m., PC Scott was involved in a traffic stop at Grove and Sylvia Streets. Officer Calleja attended at the passenger side of that vehicle and arrested Mr. Byfield for possession for the purposes of trafficking. He was handcuffed and Officer Calleja undertook a pat-down search of Mr. Byfield’s pockets. Nothing was found at that time and they were waiting for transport to the Barrie Police cells.

93The initial search undertaken by Officer Calleja was a general frisk of Mr. Byfield’s pockets and jacket. A more thorough search was to come when a uniformed officer was to attend in order to take Mr. Byfield back to the cells. That officer was PC Traves, who arrived at 3:10 p.m.

94PC Calleja read Rights to Counsel and Caution to Mr. Byfield at 2:56 p.m.

95For 14 minutes, Mr. Byfield was standing with Officer Calleja in the Duckworth Plaza parking lot waiting for transport. Mr. Byfield was arrested at the take-down location on Grove Street, just west of Sylvia Street. Officer Calleja walked Mr. Byfield off from that location into the Duckworth Plaza parking lot. He believed that Officer Ford drove the Byfield vehicle into the Duckworth Plaza parking lot. Other officers were at that location, namely Officers Fitzgerald, Ford, Davies and Scott.

96At 3:10 p.m., Officer Traves arrived. Officer Calleja testified that Mr. Byfield was taken to the rear of Officer Traves’ cruiser, which was parked in the vicinity of a very large snowbank. It was at this location that Officer Traves began to search Mr. Byfield prior to putting him in the rear of his cruiser.

97At this time, Officer Calleja was standing a short distance away. Officer Traves advised Officer Calleja that he found something located in Mr. Byfield’s groin area. It was a hard unknown object, approximately six inches by six inches in size. This hard object was not discovered by Officer Calleja during his search.

98Officer Calleja testified that he and Officer Traves pulled Mr. Byfield’s pants out. Officer Calleja could see that Mr. Byfield was wearing a red onesie. The red onesie was pulled out, whereupon Officer Calleja could see a clear baggie located on the left side of Mr. Byfield’s groin.

99Mr. Byfield’s pants were pulled out maybe three or four inches. Officer Calleja did not note who pulled the pants. Officer Calleja testified that it was he who pulled the red onesie, which was described as red long-johns underneath Mr. Byfield’s pants. When Officer Calleja pulled the onesie out, to the left side of the groin area, he could see a plastic bag, which Officer Calleja pulled out. The bag contained a white powder and yellow rock substance. The items were seized and Mr. Byfield was escorted to the cells at 3:18 p.m. The time it took to pull Mr. Byfield’s pants out and retrieve the plastic bag was 20 to 30 seconds. The item was rolled up tightly.

100Initially, Officer Traves did not know what the object was. It was approximately six inches wide by six inches long. It was described as a white clear plastic bag tied up tightly. Officer Calleja could see rock cocaine and powder in several baggies located inside one bag. Officer Calleja did not remove any of Mr. Byfield’s clothing. He did not see any exposed skin or Mr. Byfield’s genitalia. Officer Calleja testified that there were no citizens around watching the search. He testified that the search was discrete and conducted near a snowbank at the rear of the cruiser. He described Officer Traves as being a large man, who was also located there. Officer Calleja testified that he was likely wearing black plastic search gloves at the time, but he could not recall.

101When Mr. Byfield was arrested, Officer Calleja asked him several times if there was anything on him that the officer should be made aware of, both for officer safety and for the safety of the accused. This was a standard question.

102After the baggie was found, no other search was conducted at the scene. Mr. Byfield was fairly calm. After the item was seized, at 3:20 p.m., Mr. Byfield was returned to the station. A sample of the substances were processed and sent to Health Canada. The items were put in the police property lockers and before that, they substances were weighed and entered on an exhibit sheet.

103He prepared the exhibit sheet, which was marked as Exhibit # 4 on this voir dire. One larger bag contained four smaller individual bags containing cocaine, weighing 21.79 grams, 13.88 grams, 28.06 grams and 27.57 grams. The total amount of cocaine seized weighed 184 grams.

104In cross-examination, Officer Calleja testified that he was advised by DC Fitzgerald that surveillance would be conducted at a Napier Street address. DC Fitzgerald had received information that drug trafficking was taking place and they needed to get to 144 Napier fairly quickly.

105At the police station, Officer Calleja was briefed at about 11:55 a.m. about Tristen, a black male with average build. He was advised that if a red SUV was located at 144 Napier, Tristen and an unknown male were cooking drugs in the basement. He recalled the name Tristen, and Tristen was Target # 1.

106He was trained at police college how to undertake strip searches with additional training during the course of his service as a police officer. He was aware that this was a sensitive area in the law and that the Barrie Police Service had a protocol prohibiting strip searches in the field. He agreed that this procedure had been in place since the early 2000s. As a police officer, for a period of over 19 years, he had been involved in 30 to 40 strip searches. He agreed that it was important to methodically detail in his notes that a full strip search had been conducted. He agreed that strip searches were the most intrusive search that could be undertaken and that it was important to take notes for each strip search. He agreed that there was a standard way to perform strip searches and that he was trained to undertake them in a specific way. People wear different types of clothing and he agreed that it was important to detail in his notes what people wore. He agreed that the approval of a staff sergeant was required before conducting a strip search.

107When he was on scene at 144 Napier, he was in an unmarked police car and he was dressed in plain clothes during surveillance.

108There was no information that Mr. Byfield was going to be in attendance at 144 Napier Street. Tristen was the sole target of the investigation at that time, in order to collect evidence for further drug trafficking to build the case.

109He did not believe that he was “on the eye”. He had driven by and observed vehicles in the driveway. The surveillance involved listening to what was transmitted on the police radio. DC Fitzgerald was the central note-taker.

110He observed two vehicles parked in the driveway – a white Honda Civic behind which a red Ford Edge was parked. This information would have been sent to the central note-taker. He did take down licence plate numbers but did not conduct a licence plate search. If DC Fitzgerald did a CPIC, he would have radioed this information back to Officer Calleja. This information was not radioed back. It was fair to say that no individual was identified at 144 Napier Street until the time of arrest. He radioed that Mr. Byfield’s vehicle had arrived at the scene. He heard that a black male with an afro hairstyle got into one of the vehicles and he believed this was Tristen.

111Moving to the Duckworth Plaza, he agreed that this was a public place and there was no control in respect of the entrance or exit of vehicles during the police take-down. There was a free flow with no restriction of access or exit. There were also people moving freely in and out of the plaza. He agreed that it was a busy plaza with vehicular and pedestrian traffic.

112He described how the Byfield vehicle was blocked in on Grove Street. He assumed that civilian traffic proceeded on Grove Street. Officer Calleja went to the passenger side of the Byfield vehicle. He had on his police vest marked “Police”. He does not remember wearing any gloves.

113At this stage, he was the only officer dealing with Mr. Byfield. He went to the passenger window and instructed Mr. Byfield to come out of the vehicle. Mr. Byfield was co-operative. At that time, Officer Calleja gave Mr. Byfield his Rights to Counsel and Caution. Mr. Byfield was standing when cuffed. Officer Calleja agreed that Mr.Byfield advised that he wanted to call his lawyer. Officer Calleja never asked who that lawyer was.

114He did not know whether Mr. Byfield was given another right to counsel as part of the search process. He testified that he took Mr. Byfield off Grove Street and into the Duckworth Plaza. The Right to Counsel and Caution were given to Mr. Byfield by Officer Calleja in the parking lot.

115He testified that the primary concern for officer safety was engaged. For officer safety, a search was done to see if there were any weapons. He undertook a frisk search and relied upon uniformed officers to do a thorough search. He agreed that during the initial frisk that he conducted, there was no risk of officer safety.

116However, another pat-down search was conducted by the transport officer before transporting Mr. Byfield to the police station. He agreed there was a 14-minute gap between his frisk and when Officer Traves arrived.

117When Officer Traves arrived, he drove into the parking lot. He parked his vehicle in the southeast portion of the parking lot. Officer Traves’ cruiser was facing westbound along Grove Street, next to a large snowbank by the cruiser. Officer Calleja testified that Officer Traves stepped out of his vehicle, whereupon he was advised that Mr. Byfield was in custody for possession for the purposes of trafficking.

118Officer Calleja handed over custody to Officer Traves, who took Mr. Byfield to the back of his cruiser. At this time, Officer Calleja was standing to the side and did not personally observe Officer Traves conducting the search of Mr. Byfield.

119Shortly after Officer Traves did his pat-down search, he advised Officer Calleja that he had found some unknown item in Mr. Byfield’s groin area. Officer Calleja returned to where Mr. Byfield and Officer Traves were standing and he conducted a strip search at this point. He did not call the OIC, DC Fitzgerald, or Sgt. Grant. They were not radioed to say that something had been found. Officer Calleja agreed that permission had not been asked – not in this situation, as it happens quite often.

120During the 14-minute time that they were waiting for Officer Traves, Mr. Byfield had been handcuffed and was no direct threat while standing in the parking lot. The police station was located a four-minute drive away.

121Officer Calleja testified that officer safety was still an issue that could arise at the police station. A strip search could take place at the police station as well.

122Officer Calleja could not recall what Mr. Byfield was wearing. He was wearing dark coloured jeans, but what was unique to Officer Calleja was that Mr. Byfield was wearing a red onesie. He made no notes as to whether or not Mr. Byfield was wearing loose-fitting jeans. He made no notes as to what Mr. Byfield was wearing on his upper body.

123Officer Calleja testified that Mr. Byfield was wearing something under his onesie. He did not see any exposed flesh. Mr. Byfield was wearing underwear under the onesie. He testified at the preliminary hearing that he did not believe that Mr. Byfield was wearing underwear in addition to the onesie. He did not recall seeing any exposed skin and assumed that Mr. Byfield was wearing underwear. He testified that he should have said that he did not recall if Mr. Byfield was wearing underwear. However, he did not recall seeing any exposed skin.

124Behind Officer Traves’ cruiser, Mr. Byfield was standing with his hands cuffed behind him. They were by the rear passenger door of the cruiser. Mr. Byfield was facing the cruiser with his back to the police. Officer Traves was standing to Mr. Byfield’s right and Officer Calleja was to Mr. Byfield’s left. Again, Officer Calleja testified that Mr. Byfield’s pants were pulled out and he saw the red onesie. He also saw a clear bag and pulled it out. He was not clear as to who pulled out the top of Mr. Byfield’s pants. It was either himself or Officer Traves. He did see the red onesie. Officer Traves did not take Mr. Byfield’s pants down to his knees. He testified that the top of the pants came out three to four inches and he (Officer Calleja) also pulled the onesie as well. It was loose enough for that. There is no note as to whether Mr. Byfield was wearing a belt. Again, either Officer Calleja or Officer Traves pulled Mr. Byfield’s pants approximately three or four inches from his waist. Officer Calleja used his left hand to pull out the onesie and his right hand to pull out the drugs. He describes seeing the buttons to the onesie being fairly big and located three to four inches apart. His evidence varied on this point. He also testified that the buttons were one to two inches apart and then settled on two to four inches apart. He testified that there was a big gap between the buttons. He made no notes regarding same.

125He testified that he did move the onesie. He pulled it out with his left hand. From the time the waistband was pulled out, and the plastic bag was removed, 15 to 20 seconds elapsed. The plastic bag was located more to the left side of Mr. Byfield’s groin area. Again, the bag was to the left side of Mr. Byfield’s genitals. Officer Calleja did not see Mr. Byfield’s genitals or any skin. He reached in with his right hand to remove the plastic bag and pulled it out. He testified that the bag was in plain view. The bag was pressed between Mr. Byfield’s groin area and leg. Officer Calleja agreed that it was a fairly large bag. He agreed that Officer Traves did tell him that he had located an item in the groin area. He knew then that they were going to search the groin area. He agreed that he put on gloves to conduct a search of the groin area and to rearrange clothing. No warning was given to Mr. Byfield. He saw the plastic bag and pulled it out. He had no recollection as to what he said to Mr. Byfield.

126Officer Calleja’s evidence at the preliminary hearing was that he had no conversation with Mr. Byfield at this point in time. Mr. Byfield was not asked what was in his pants. He was not told what the police were going to be doing. They just did it. He did tell Mr. Byfield that he was under arrest for possession for the purposes of trafficking.

127He was shown some photographs of a red onesie that showed buttons that were three inches apart. One photo showed all the buttons done up and a hand going in between them. He testified that he did not undo any of the buttons on the onesie. He testified that he did not undo the buttons to reveal the groin area. Again, he testified as to the gap between the buttons and testified that the gap was between three and four inches. He had no notes in respect of the distance between the buttons. He agreed that the bag was approximately six inches by six inches, the gap was between three to four inches, but that six inches was more than three to four inches. He agreed that the search was done in a public parking lot. He testified that the search was done with concern for Mr. Byfield’s privacy. He testified that people are never searched facing a police officer for officer safety. When Mr. Byfield was searched, Officer Calleja did not know the number of people or cars in the parking lot.

128He was aware that full strip searches could take place at the police station. He did not agree that this was a strip search. It was not a surprise to him that the rearrangement of clothing is a strip search. He did not take down Mr. Byfield’s pants. He did not transport Mr. Byfield to the police station. Rearranging Mr. Byfield’s clothing was not considered a strip search. Officer Calleja testified that this type of search is what he normally does.

129He agreed that a more intrusive search of a person’s rectum would be done in a hospital and buttocks at the police station.

130In re-examination, Officer Calleja testified that if Mr. Byfield was wearing underwear under his red long-johns, he was unaware if that was found as part of the search at the Barrie Police station.

131Again, he testified that the total time involved in respect of the search was 20 seconds.

132He did not count the buttons on the red onesie. He did not measure the distance between the buttons. He did not see if any of the buttons had fallen off.

133In respect of officer safety, Officer Calleja did a cursory search of Mr. Byfield and then waited for 14 minutes for a uniformed officer to transport Mr. Byfield to the police station. Officer safety became an elevated concern for Officer Calleja after he was told what Officer Traves had found.

Evidence of Sergeant William Grant

134Sgt. Grant has been a police officer for 19 years – 18 years with the Barrie Police Service.

135In January 2017, he was in charge of the Street Crime Unit. He had received information from DC Fitzgerald and was involved in surveillance on 144 Napier Street. There was a team, including other officers. He heard what other police officers had observed over the police radio. DC Fitzgerald was the central note-taker. Sgt. Grant also made notes in his own notebook.

136He attended on scene at 144 Napier Street and observed a white Dodge Journey motor vehicle pull into the driveway at that address. He was not familiar with that vehicle, nor was he familiar with Mr. Byfield before this case.

137He observed a black male wearing a red jumpsuit exit 144 Napier Street and that person went to the Byfield vehicle. He observed Mr. Byfield wearing a dark toque and black jacket, getting out of that vehicle on the driver’s side. He switched places with the male in the red jumpsuit. That person became the driver and Mr. Byfield became the front seat passenger. The person in the red jumpsuit also had a black afro hairstyle.

138The Byfield vehicle left 144 Napier and proceeded along a two kilometre route in the east end of Barrie. The vehicle pulled into the Duckworth Plaza. Sgt. Grant observed the vehicle proceeding to the northeast corner of the parking lot and parked near two garbage cans away from the main business area. The vehicle backed into that location. He observed a white male with a black baseball hat worn backwards entering into the driver’s side of the Byfield vehicle. He lost his observation point for about 10 seconds after he turned his vehicle around. He observed the same white male exit the Byfield vehicle and return to a green Oldsmobile Alero motor vehicle. This green vehicle was parked a few spots down from the Byfield vehicle. He observed nothing in the white male’s hands. No one from the Byfield vehicle went to any business at the Duckworth Plaza. Sgt. Grant believed that what he saw was a drug deal.

139Sgt. Grant testified that he had seen transactions like this over a hundred times. The white male was in the Byfield vehicle for less than a minute. After the white male returned to the green car, both vehicles left the parking lot. The Byfield vehicle exited the east side of the parking lot on Sylvia Street. The Byfield vehicle then proceeded southbound to Grove Street. Sgt. Grant followed the Alero southbound on Duckworth Street. He heard that there was a take-down of the Byfield vehicle on Grove Street. He returned to the take-down scene and blocked eastbound traffic on Grove Street. Sgt. Grant did not deal with people inside the Byfield vehicle. He saw Mr. Byfield and the other male wearing the red jumpsuit. They were under arrest. He helped search the vehicle, which was momentarily at the Duckworth Plaza parking lot. That vehicle was then brought back to the station for further search. Traffic was described as very busy at the time. He had nothing to do with Mr. Byfield, who was searched either on Grove Street or in the Duckworth Plaza. Sgt. Grant did not recall seeing Mr. Byfield being searched.

140In cross-examination, Sgt. Grant testified that DC Fitzgerald provided him with some information regarding which Sgt. Grant could not recall the specifics. He went to 144 Napier Street to conduct surveillance regarding drug investigation. He did not note who the target of that investigation was. He was the highest ranking officer during the investigation.

141He did not know what Mr. Byfield looked like prior to Mr. Byfield’s take-down and arrest. He did not know what motor vehicle was associated with Mr. Byfield. He had observed Mr. Byfield and the black male, dressed in red, switching seats in the Byfield vehicle. The windows to that vehicle were heavily tinted so he could not see what was going inside.

142He testified that if an officer wanted to conduct a strip search, that officer would have to seek approval from him or a higher ranking officer.

143He testified that strip searches would very rarely be done roadside, but would normally be done at the station. He has never conducted a strip search at roadside before.

144He testified that there was heavy traffic eastbound on Grove Street. He testified that there were a number of members of the public in the area on the roadway and in the plaza.

145Sgt. Grant was not present when Officers Calleja and Traves searched Mr. Byfield. He did observe two people in custody and handcuffed.

146The area where the Byfield vehicle was parked was isolated and not in front of the pharmacy. Marked as Exhibit # 5 was a Google map on which Sgt. Grant had marked the location of the Byfield vehicle and the pharmacy.

147He testified that a few cars were parked where the green Alero was parked. Most cars were parked in the location of the Tim Horton’s. He did not see anything occurring inside the Byfield vehicle – either at the 144 Napier address or at the Duckworth Plaza. He did not see anything in the hands of the unknown white male, as he was walking towards the Byfield vehicle. Neither did he see anything in the hands of this person when he walked away from the Byfield vehicle.

148He denied that he never had reasonable and probable grounds for arrest. He felt that reasonable and probable grounds were made out when the Byfield vehicle left 144 Napier Street. His grounds of a suspected drug transaction continued to build after he made observations at the Duckworth Plaza. The decision to arrest was made after the Duckworth Plaza transaction.

149He testified that arrests can take place when reasonable and probable grounds exist, but those grounds are fluid. He felt more comfortable about reasonable and probable grounds after he saw the transaction occur in the Duckworth Plaza. He believed that he had enough grounds had the transaction not happened.

Evidence of PC Bradley Traves

150PC Traves has been a police officer for 24 years – 15 years with the Barrie Police Service. On January 2017, his role in this case was to transport Mr. Byfield from the location of arrest to the Barrie Police Service station at Sperling Drive.

151He made contemporary notes without addition, deletion or amendment and he has independent recollection of this matter.

152On January 9, 2017, he received a ratio call at 3:00 p.m. requesting that he assist the Street Crime Unit at Grove Street near the Duckworth Plaza.

153He arrived on scene, whereupon Officer Calleja presented Mr. Byfield to Officer Traves. Officer Calleja advised Officer Traves that Mr. Byfield had been arrested and charged with possession for the purposes of trafficking. Officer Traves was not involved in the investigation. He was called to transport Mr. Byfield, who was in custody. Before placing Mr. Byfield in Officer Traves’ vehicle, for safety purposes, Mr. Byfield underwent a pat-down search by Officer Traves at the right rear side of the cruiser. The search was described as a “quadrant search” starting with the neck and shoulders front and back, under the arm pits, waistband front and back, groin and down both legs. This was a pat-down search outside of Mr. Byfield’s clothing.

154As a result of searching Mr. Byfield, Officer Traves felt something bulky in the groin area of Mr. Byfield. This item was not consistent with human anatomy. Officer Traves thought that the item was contraband. Officers Calleja and Ford were in the area about 15 feet away. He spoke to Officer Calleja and told him what had been located. Officer Calleja took control of the remainder of the process. The officers wanted to determine what the item was. Officer Calleja pulled out the waistband of Mr. Byfield’s pants. Officer Traves looked down and could see red long underwear and he could see buttons on the underwear. Between the buttons was a space where he could see clear plastic sticking out. Officer Calleja pulled the baggie out and they saw a yellow substance consistent with crack cocaine.

155He did not notice if any of the buttons were undone. They appeared all done up. He did not see Officer Calleja touch or manipulate any items. He saw a corner of the baggie sticking out between the buttons of the red underwear.

156Between the time that the waistband was pulled out and the baggie was removed, the time was well under a minute.

157It was Officer Calleja who reached in and pulled out the baggie.

158Officer Traves testified that when something bulky was located in a non-anatomical area, this is greatest concern because a weapon could be concealed. As a police officer, he has found countless weapons in that area. There could be drugs there too. A search was done for his safety, the safety of the accused and the public. Officer Traves testified that this issue would need to be dealt with before an accused person gets in the back of his cruiser.

159He testified that he is sensitive to the dignity of the accused and cognizant of the privacy interests of the accused as well.

160He testified that he and Officer Calleja were at the back of Officer Traves’ cruiser. Mr. Byfield was facing the cruiser with Officer Traves on his right side and Officer Calleja on his left. There were snowbanks around where they were located, created by snow removal in the parking lot. Being cognizant of the dignity of the accused, Mr. Byfield, they wanted to do the search quickly. He did not see any civilians at the plaza. He did not see Mr. Byfield’s genitals at that location. Mr. Byfield’s pants were not lowered at all there.

161After the item was seized, Officer Calleja maintained control. Officer Traves asked Officer Calleja if there was anything else on Mr. Byfield and Officer Calleja replied “no”.

162The search was completed in respect of the lower areas of Mr. Byfield’s legs. He was put in the cruiser and taken to the station.

163Officer Traves believed that he asked Mr. Byfield what was the bulky object. Mr. Byfield responded that it was “his dick”. Officer Traves did not believe him as what he felt was not consistent with human anatomy.

164At the station, Officer Traves described the booking process; Rights to Counsel and Caution were given. At the police station, Officer Traves asked for a complete search and the staff sergeant granted this request. Mr. Byfield was taken to a closed room, where there were no cameras, but there was audio, and Mr. Byfield was searched. He disrobed one item at a time and each clothing item was checked. He was found not to have concealed anything else. During this process, Officer Traves did not touch Mr. Byfield. He did not see anyone else touch Mr. Byfield. Officer Traves testified that underneath the one-piece red long underwear worn by Mr. Byfield, he also wore underwear. He could not recall the colour or style of that underwear.

165In cross-examination, Officer Traves testified that he was trained on how to conduct a strip search. That training was further updated by seminars and review of case law.

166At the location of the search, his contact was with Officer Calleja. Officer Traves is familiar with the Barrie Police Services protocol prohibiting strip searches in the field. He has done hundreds of strip searches in the field. He is aware that each case is unique and requires documentation. He stood by to the right of Mr. Byfield while Officer Calleja pulled out Mr. Byfield’s waistband and checked Mr. Byfield’s groin area. Officer Traves made no notes in respect of what Mr. Byfield was actually wearing. All that he could remember was that Mr. Byfield was wearing dark long pants.

167He testified as to where he entered the Duckworth Plaza. His vehicle was located in the southeast corner of the parking lot with his cruiser facing Grove Street. There was a large snowbank at that end. Mr. Byfield was brought to the right rear area of Officer Traves’ cruiser where the trunk was located. During Mr. Byfield’s search, Officer Traves had control of Mr. Byfield by holding Mr. Byfield’s right tricep with Officer Traves’ left arm. Officer Traves did not touch Mr. Byfield’s pants or pull the waistband to those pants. His notes say that Officer Calleja did that. Officer Calleja pulled the waistband out, but Officer Traves does not recall which hand Officer Calleja used. He recalled that Officer Calleja saw an item sticking out. Officer Calleja pulled it out and it came out through a gap in the red underwear. Officer Traves testified that Officer Calljea reached in and pulled the bag out. He saw Officer Calleja grab a corner of the bag and pull it out. At no point did anyone speak to Mr. Byfield to advise what was going on. He did not recall if at any time either he or Officer Calleja told Mr. Byfield that his onesie was going to be rearranged. He did not know if anyone said to Mr. Byfield that there was an item located in Mr. Byfield’s groin area, which item was going to be pulled out. No one gave Mr. Byfield the option to remove the item on his own as his hands were handcuffed behind his back. Officer Traves confirmed that the drive back to Sperling Drive was a four-minute drive.

168In re-examination, Officer Traves stated that officer safety was an exception to the Barrie Police protocol regarding strip searches.

Evidence of Aleesha Duhaney

169The defence called this witness to testify on the voir dire.

170Ms. Duhaney is the sister of Mr. Byfield. She took three photographs on August 15, 2017 of her brother’s onesie. She sent these photos to her lawyer. Marked as Exhibit # 6 on the voir dire are the three photos taken by Ms. Duhaney.

171In cross-examination, she testified that she is 32 years old. Mr. Byfield is 22 years of age. She was not with him on the date he was arrested. She believes that he was arrested on January 9, 2017 and on January 20, 2017 he was released on bail.

172She testified that she did not take any photos of the back of this garment. She testified there was nothing on the back of the onesie and was not sure if there were any buttons on the reverse side.

173She took the photos eight months after Mr. Byfield was charged. She did not see the onesie on the date of his arrest. She had no knowledge that on the date of his arrest, he wore the garment that she photographed. Given the nature and totality of her evidence, I find Ms. Duhaney’s evidence about the onesie garment and her photos of it to be irrelevant, unreliable and of little assistance to the court. I give her evidence no weight whatsoever.

Analysis

174Mr. Byfield submits there were insufficient reasonable and probable grounds to arrest him, as a result, breaching his s. 9 Charter rights. Further, he submits a search incident to an unlawful arrest consequently also becomes unlawful and therefore breaching his s. 8 Charter rights.

175The Crown submits that Mr. Byfield was lawfully arrested in accordance with s. 495(1)(a) of the Criminal Code as the police had the requisite reasonable and probable grounds to arrest him without a warrant. Further, the officers were entitled, pursuant to the powers of that arrest, to search Mr. Byfield’s person incident to arrest. It was during the course of this roadside search of Mr. Byfield’s person that multiple baggies of cocaine weighing over 184 grams were located. The Crown submits that there was no s. 9 (arbitrary arrest) violation and no s. 8 (search of his person without a warrant) violation.

Section 9 – Arbitrary Detention

176Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned.”

177In R. v. Storrey, [1990] 1 S.C.R. 241 at paras 16 and 17, the Supreme Court of Canada held:

In summary then the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

178In R. v. Storrey, the Supreme Court of Canada held that the police are required to have a subjective belief that reasonable and probable grounds exist. Further, for an arrest without a warrant to be lawful, those grounds must also be justifiable from an objective point of view. When making this assessment, the court should consider whether a reasonable person standing in the shoes of the police would have believed that reasonable and probable grounds existed. The Supreme Court of Canada also stated that the police are not required to demonstrate they had a prima facie case for conviction.

179Reasonable and probable grounds require credibly based probability informed by the context in which the police officer is acting as well as the offences being investigated. Information known to the officer and his experience form the grounds. The totality of the circumstances at the time of the arrest must raise a reasonable probability that a person has committed or is about to commit an offence. The offence is not to be viewed in isolation. (See R. v. Golub, [1997] O.J. No. 3097 (Ont. C.A.) at para. 21.)

180A confidential informant's tip provides reasonable grounds only where on the totality of circumstances it was objectively reasonable to believe that an offence had been committed having regard to the following:

(a) whether the information was specific and compelling -- a conclusory tip is not satisfactory; (b) whether the factual basis of the C.I.'s allegations were communicated; (c) whether the C.I. provided information which was credible; (d) whether there is any corroboration of the information; (e) whether the corroborating information was commonly known or readily apparent; (f) had the C.I. been used before or was it the first time that the C.I. had supplied information; and, (g) weaknesses in one area may be counterbalanced by strengths in other areas. (See R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53)

Did DC Fitzgerald have reasonable and probable grounds to order the arrest of Mr. Byfield?

181I accept the evidence of DC Fitzgerald and find that he relied on the following factors and observations to ground his subjective belief that reasonable and probable grounds existed to arrest Mr. Byfield:

(a) Timely information about suspected drug dealing taking place from the residence at 144 Napier Street, Barrie, Ontario. (b) Similar information received from DC Ford, albeit dated, but also suggesting he had proven and reliable information in the past year about drug dealing at this residence as well. (c) Barrie Police watching the residence and seeing who they suspected was Ronald Byfield attend the residence and then just sit there in the driveway. (d) DC Fitzgerald was aware of information that Mr. Byfield was involved in selling narcotics in Barrie. (e) The police then see an unknown black male (in all red clothing) exit 144 Napier Street, get into the Byfield vehicle, and then a minute or so later they switch seats so that the suspected Mr. Byfield was now in the front passenger seat and the person wearing red was now driving. (f) Then they drive away in the Byfield vehicle to the Duckworth Plaza and just park there in an isolated location. Police never see either of the two men attend any of the stores or even get out of the vehicle. (g) Very quickly after arriving, an unknown male gets out of a green car and attends the rear driver’s side of the Byfield vehicle. One minute later, that white male leaves the Byfield vehicle and returns to his vehicle. The Byfield vehicle then proceeds to leave the plaza and drives away.

182I accept the evidence of DC Davies which supported the information received from the CHS about activities taking place at 144 Napier Street. That information was relayed to DC Davies by DC Fitzgerald.

183I also accept the evidence of DC Ford who was part of the investigative team acting on the information received from a CHS about drug activity at 144 Napier Street – about a black man named Tristen, in his 20s, average build, 5 feet - 8 inches tall with an afro hairstyle, who always wore a Chicago Bulls jacket. He had received information about Tristen selling crack cocaine from a CHS one year prior. At that time, information from that CHS was “eight times proven”.

184I accept the evidence of Sgt. Grant, the senior officer in the investigation. He testified about his observations at 144 Napier Street and his observations at the Duckworth Plaza. He believed what he observed at the Duckworth Plaza was a drug deal. I find Sgt. Grant also believed that reasonable and probable grounds were made out when Mr. Byfield’s Byfield vehicle left 144 Napier Street. His grounds of a suspected drug transaction continued to build after he made observations at the Duckworth Plaza. I accept his evidence that the decision to arrest Mr. Byfield was made after the transaction which took place at the Duckworth Plaza. He also believed that he had enough grounds to arrest had the transaction not happened.

185On the totality of the evidence given by the officers, which I accept as credible, I find that the police officers specifically DC Fitzgerald and Sgt. Grant had a subjective belief that reasonable and probable grounds existed to arrest Mr. Byfield.

186With regard to the second step of the Storrey test, assessing objective belief, I have reviewed the evidence of the officers who testified. I have considered the totality of their evidence – their observations and factors involved.

187I find that those same observations and factors described in their testimony would sufficiently allow a reasonable person standing in the shoes of the police to objectively believe that reasonable and probable grounds existed – specifically that it was likely a drug transaction had just occurred.

188I conclude on all of the evidence presented by the officers who testified, that Mr. Byfield was lawfully arrested in accordance with s. 495(1)(a) of the Criminal Code as the police had the requisite reasonable and probable grounds to arrest Mr. Byfield without a warrant.

189I find the Crown has satisfied its onus and has established that the police had both subjective and objective reasonable and probable grounds to arrest Mr. Byfield. Accordingly, the arrest was a lawful and not a violation of Mr. Byfield’s rights under s. 9 of the Charter.

Section 8 – Unreasonable Search or Seizure

190Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”.

191Mr. Byfield submits the police conducted an unlawful strip search of him in a public parking lot with people in the area. He submits the strip search was not performed in accordance with the principles set out by the Supreme Court of Canada in R v. Golden, [2001] 3 S.C.R. 679.

192As such, it is asserted that the strip search was not conducted in a reasonable manner. Mr. Byfield submits the Crown cannot satisfy the three-part test set out in Golden in as much as the search was not authorized by law and the strip search was not conducted in a reasonable manner. It is submitted that the unreasonable search of Mr. Byfield amounted to a breach of his constitutional guarantees under s. 8 of the Charter.

193The Crown submits the lawful arrest led to the resulting search incident to arrest of Mr. Byfield’s person, which was also lawful. The Crown submits there was no s. 8 Charter breach.

194It is the further position of the Crown that due to safety concerns, prior to transporting Mr. Byfield to the station, he was subject to a brief search that involved pulling back his outer pants waistband to retrieve a plastic bag that was then in plain view. The police had legitimate safety concerns that made this brief roadside search necessary prior to transporting Mr. Byfield to the station. This search was not carried out in violation of Mr. Byfield’s s. 8 Charter rights.

Did the police have reasonable and probable grounds to conduct a roadside search of Mr. Byfield’s front groin/underwear area? And if so, was that search conducted in a reasonable manner?

195The leading case on strip searches is the Supreme Court of Canada decision in R. v. Golden, [2001] 3 S.C.R. 679.

196A useful and succinct summary of the legal principles which emerge from Golden can be found in the Ontario Court of Appeal decision in R. v. Pilon, 2018 ONCA 959.

197In Pilon, Hourigan J.A. considered the legal principles applicable to strip searches incident to arrest, field strip searches and exigent circumstances, and whether the two strip searches in Pilon were Charter compliant. The court went on to conduct a s. 24(2) analysis. The court held that while the strip searches violated Mr. Pilon’s s. 8 rights, the evidence from the strip searches on a s. 24(2) analysis would not be excluded.

198The legal principles summarized by the Court of Appeal in Pilon at paragraphs 13 to 19 inclusive, are worth reviewing regarding strip searches incident to arrest as follows:

[13] In Golden the issue for determination was whether the power to search incident to arrest is broad enough to encompass the authority to strip search an arrested individual. Justices Iacobucci and Arbour, writing for the majority, undertook an exhaustive review of the law regarding strip searches in Canada and other jurisdictions. A number of legal principles emerge from their analysis of the preconditions to a lawful strip search incident to arrest that are relevant to the issues in this case.

[14] First, a strip search is defined as “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: Golden, at para. 47.

[15] Second, even the most sensitively conducted strip search is highly intrusive, as strip searches are considered a humiliating, degrading, and traumatic experience. Therefore, they should not be carried out as a matter of routine policy: Golden, at paras. 83, 90.

[16] Third, strip searches are only constitutionally valid where: (1) they are conducted incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the arrest; (2) the police establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest and; (3) the strip search is carried out in a manner that does not infringe s. 8: Golden, at para. 99.

[17] Fourth, strip searches should be conducted at a police station unless there are exigent circumstances requiring that the detainee be searched prior to being transported to a police station: Golden, at para. 102.

[18] Fifth, an arrested person’s non-cooperation and resistance does not necessarily entitle the police to engage in behaviour that disregards or compromises his physical and psychological integrity and safety: Golden, at para. 116.

[19] Sixth, the Supreme Court adopted the guidelines in English legislation concerning the conduct of strip searches. These guidelines provide a series of questions, which the court, at para. 101, found will provide a framework for police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:

1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. 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?
8. 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?
9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
10. 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?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

199In Golden, at paragraph 102, the Supreme Court of Canada considered the conduct of strip searches in the field and exigent circumstances as follows:

Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.

200In Golden at paragraph 105, the Supreme Court of Canada further considered the Crown onus where the reasonableness of the strip search was challenged:

In light of the constitutional requirements set out above for a valid strip search incident to arrest, we are of the view that the search at issue in this appeal was unreasonable, and violated the appellant’s rights guaranteed under s. 8 of the Charter. In this respect, it is critical to underscore that where the reasonableness of a strip search is challenged, it is the Crown that bears the onus of proving its legality. It thus must convince the court on a balance of probabilities that either (1) reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search “in the field” was warranted and was conducted in a reasonable manner; or (2) that reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable manner. Because strip searches are of such an invasive character, they must be considered prima facie unreasonable. It is up to the state to rebut this presumption because it is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did. This onus rests upon the Crown in any case involving a strip search, as defined in these reasons.

201The more intrusive the search, the greater will be the degree of justification required and the greater the constraints as to the way it may conducted. (See R. v. Golden, at para. 106)

202PC Calleja and PC Traves gave the most relevant and reliable evidence regarding the arrest of Mr. Byfield on Grove Street and his subsequent search in the Duckworth Plaza parking lot.

203I accept their evidence as credible and confirmatory of what transpired. After being arrested and briefly given a pat-down search by PC Calleja, nothing was found on Mr. Byfield’s person. He was walked over to the Duckworth Plaza parking lot from the arrest location on Grove Street by PC Calleja. Mr. Byfield had been given his rights to counsel and caution. In the parking lot, they waited 14 minutes until PC Traves arrived in his police cruiser to transport Mr. Byfield to the police station located close by.

204When PC Traves arrived, Mr. Byfield was handed over to him for transport by PC Calleja.

205I accept the evidence of PC Traves that in accordance with his practice, he conducted a more thorough pat-down search of Mr. Byfield before placing him in the back of PC Traves’ cruiser to be taken to the station. During the course of this search, PC Traves felt a distinct large bulky item to left side of Mr. Byfield’s groin. PC Traves described it as non-anatomical. He asked Mr. Byfield what it was and Mr. Byfield said it was his “dick”. Not believing Mr. Byfield, and having safety concerns, PC Traves advised PC Calleja of his concerns and discovery. PC Calleja then came over to the back of PC Traves’ cruiser where a search was conducted.

206I find that PC Calleja pulled out Mr. Byfield’s waistband of his pants, saw Mr. Byfield’s red onesie underwear, pulled the underwear out with his left hand, saw a baggie and removed it from the red onesie with his right hand. The baggie contained multiple bags of cocaine weighing 184 grams.

207During the search, PC Traves held Mr. Byfield’s right arm with PC Traves’ left arm.

208This search lasted 15 to 20 seconds according to PC Calleja – under a minute, according to PC Traves.

209The search was done quickly. It involved a brief inspection of Mr. Byfield’s underwear area. Mr. Byfield’s genitals were never exposed and no articles of his clothing were removed.

210I believe the evidence of PC Traves that the search of Mr. Byfield at the back of his cruiser was performed for officer safety, the safety of Mr. Byfield and the safety of the public. As a police officer for many years, PC Traves had found countless weapons concealed inside clothing in the groin area.

211He testified that before transportation of an arrested person back to the police station, PC Traves would want to be sure that person was not carrying a weapon or concealing drugs.

212PC Traves and PC Calleja were cognizant of Mr. Byfield’s privacy interests. The search was done quickly, next to a large snowbank created by snow removal in the parking lot. No civilians observed the search. PC Traves did not see any civilians in the parking lot. After the search was completed, Mr. Byfield was put in the cruiser and taken to the station.

213I accept the evidence of PC Traves and PC Calleja. Their evidence is credible. Their two largest concerns that factored into their decision to conduct the roadside search were:

(a) The concern that Mr. Byfield might have a potential weapon concealed in his groin area and the officer safety concerns that result in transporting an accused person prior to assessing that possibility; and, (b) The additional concerns about securing evidence and preventing the destruction or loss of evidence.

214What is at issue here is whether the actions of the police in rearranging the underwear of Mr. Byfield so they could see and remove the bulky package, prior to transporting him to the police station, was reasonable given the circumstances.

215This roadside search was a strip search as defined in Golden. I find PC Calleja did rearrange Mr. Byfield’s underwear so that he could investigate the bulky package located in Mr. Byfield’s left groin area. While this particular search was not carried out at the police station, I find the search was carried out consistent with the framework set out by the Supreme Court of Canada in R. v. Golden.

216I find the Crown has satisfied its onus on the balance of probabilities that reasonable or probable grounds, as well as exigent circumstances existed and therefore a strip search “in the field” was warranted and was conducted in a reasonable manner. I find the strip search was also lawfully conducted incident to Mr. Byfield’s arrest.

217I am satisfied the roadside strip search of Mr. Byfield was reasonable and did not infringe upon his s. 8 Charter rights for the following reasons:

• The search was conducted in a manner that ensured the health and safety of those involved;
• The search involved a brief visual inspection of Mr. Byfield’s underwear area;
• The officers conducting the search were of the same gender as Mr. Byfield;
• The number of officers involved was appropriate in the circumstances and was not excessive;
• Mr. Byfield’s genitals or groin area was never exposed;
• While his underwear was rearranged, the waistband of Mr. Byfield’s pants and underwear were pulled out minimally and briefly;
• No articles of clothing were ever removed from Mr. Byfield. He was not required to pull down his pants;
• The search was done as quickly as possible (15 to 20 seconds – PC Calleja; under a minute – PC Traves);
• In the circumstances, authorization from an officer in an authorizing or advising capacity was not necessary;
• There is no evidence that any member of the public witnessed any part or details of the search;
• Given the location of PC Traves’ cruiser, the location of PC Calleja, Mr. Byfield and PC Traves at the back of the cruiser, adjacent to the large snowbank in the parking lot, the search was quick, discrete and with due consideration for Mr. Byfield’s privacy rights;
• The search was minimally intrusive and justified the reasonable and probable grounds that Mr. Byfield was trafficking in drugs. Both officer safety and preservation of evidence justified this brief search;
• There is no evidence to suggest the search was aggressive or humiliating.

Section 24(2) Charter Analysis

218Assuming I am wrong in my determination that there were no violations of Mr. Byfield’s s. 8 and s. 9 Charter rights, then I conduct the analysis in R. v. Grant, [2009] 2 S.C.R. 353.

219In assessing whether evidence obtained from Charter breach should be allowed in or excluded, the court must consider the following factors:

(a) The seriousness of the Charter-infringing state conduct; (b) The impact of the breach on the Charter-protected interests of the accused; and, (c) Society’s interest in the adjudication of the case on its merits.

(a) The Seriousness of the Breach

220If Mr. Byfield was unlawfully arrested and unreasonably searched roadside, the Crown submits that DC Fitzgerald was operating under the subjective belief that he had reasonable and probable grounds that Mr. Byfield was involved in the trafficking of narcotics mere minutes prior to his arrest. The Crown would not agree that this conduct on the part of the police should be classified as a flagrant breach or based on the unfounded conclusions. Admitting evidence in to the trial process in these circumstances would not bring the administration of justice into disrepute.

221DC Fitzgerald was operating under the subjective and objective belief that he had reasonable and probable grounds that Mr. Byfield was involved in trafficking of narcotics mere minutes prior to his arrest. I find the police acted in good faith and the strip search was conducted for legitimate reasons, such as officer safety and the preservation of evidence.

222I do not agree that police conduct should be classified as a flagrant breach or based on unfounded conclusions.

223The manner in which the search was conducted was not aggressive, but was minimally intrusive. The search was conducted quickly and one item that could be seen was retrieved. There was no further exploration of Mr. Byfield’s groin area. He was not required to take down his pants. His genitals were not seen and there was no touching of his genital area during the conduct of the search. The search was quickly carried out an in an area away from the public.

224I am of the view that admitting the evidence (drugs) into the trial process in these circumstances would not bring the administration of justice into disrepute.

(b) The Impact on the Rights of Mr. Byfield

225This factor requires the court to assess the extent to which the Charter breaches actually undermined the interests protected by the rights infringed.

226In terms of the arrest and roadside search, the Crown submits that the police were acting in good faith and at the minimum under the subjective reasonable and probable grounds that Mr. Byfield was involved in the trafficking of narcotics mere minutes before his arrest. Further that in all of the circumstances, and primarily out of concerns for officer safety, the police conducted the roadside search of Mr. Byfield in an expedited and reasonable manner.

227On the other hand, and particularly in terms of an alleged roadside search violation, it is acknowledged a person’s privacy interests, as protected by s. 8 of the Charter, are actively engaged in the context of an unlawful roadside search by state authorities. An analysis of such breaches under this branch of test often favour exclusion.

228The Crown submits that the police were acting in good faith and with reasonable and probable grounds to arrest Mr. Byfield as he was involved in the trafficking of the narcotics mere minutes before his arrest. It is further submitted that the police acted primarily out of concerns for officer safety and the roadside search was conducted in an expedited and reasonable manner. I accept the evidence in this regard.

229Nevertheless, Mr. Byfield’s privacy interests, as protected by s. 8 of the Charter, were actively engaged in the context of the roadside search by state authorities.

230In Golden, the Supreme Court of Canada stated that even the most sensitively conducted strip search is highly intrusive. Accordingly, I find that the impact of the breach on Mr. Byfield’s Charter-protected interests favours exclusion of the evidence.

(c) Social Interest in Adjudication on the Merits

231When assessing whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion, the court ought to consider: (1) the reliability of the evidence; and (2) the importance of the evidence to the prosecution’s case.

232The evidence in the present case is reliable and its admission is vital to the case for the prosecution. The evidence of the over 184 grams of cocaine, in this matter, was located on Mr. Byfield’s person after he had been involved in a suspected drug transaction.

233In all of the circumstances, the Crown submits that if there was a s. 8 Charter breach – the public has a vital interest in seeking this matter adjudicated on its merits. This evidence is essential to the Crown’s prosecution of this case. Preventing the distribution of cocaine and related Schedule 1 narcotics is a major concern for this community and the police service that serves it.

234When assessing whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion, the court ought to consider: (1) the reliability of the evidence; and, (2) the importance of the evidence to the prosecution’s case.

235I find in this case that the evidence is reliable and its admission is vital to the case for the prosecution. The evidence of over 184 grams of cocaine located on Mr. Byfield’s person after he had been involved in a suspected drug transaction is highly reliable evidence. The charge against Mr. Byfield is very serious as he was found in possession of cocaine, both in powder and solid form.

236In balancing these factors, I conclude that admission of the evidence would not bring the administration of justice into disrepute. The officers were acting in good faith and conducted a search that was minimally intrusive of Mr. Byfield’s privacy rights. I find that the search was conducted in a manner that is consistent with the best practices endorsed by the Supreme Court of Canada in Golden. In addition, the evidence is highly reliable and society has a genuine interest in the adjudication of these serious crimes on the merits. As such, I would not exclude the evidence from the strip search on the s. 24(2) analysis.

Disposition

237For these reasons, Mr. Byfield’s application is dismissed. The evidence seized by the police on the search of Mr. Byfield’s person is not excluded.