OSHAWA COURT FILE NO.: CR-17-14546 DATE: 20190121 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – PANKAJ BEDI Defendant/Applicant

Counsel: Gregory J. Raven, for the Crown James L. Miglin, for the Defendant/Applicant

HEARD: January 8-10, 2019

RULING RE: SECTION 8 APPLICATION

CHARNEY J.:

Overview

[1] The applicant, Pankaj Bedi, is charged with 10 counts of trafficking, possession and possession for the purpose of trafficking under the Controlled Drugs and Substances Act, SC 1996, c 19. The charges arose as a result of an undercover police operation conducted by the Durham Regional Police force between August and October of 2016.

[2] The applicant was arrested at approximately 9:10 p.m. on October 7, 2016 in a Walmart parking lot. The applicant entered the passenger door of a vehicle being driven by the co-accused, Bellinger, and was sitting in the front passenger seat. At this time the police called a “take-down” and proceeded to “box-in” the vehicle. The vehicle attempted to break out of the “box”, but was contained by the police.

[3] Upon arrest, the applicant was removed from the car by Det. Cst. Aiello and put face first on the ground and handcuffed behind his back. He was stood up, and read his rights to counsel and caution. The applicant indicated that he wanted to speak to a lawyer and provided a name. Det. Cst. Aiello conducted a brief cursory search incident to the arrest, but nothing was located on the applicant’s person. Det. Cst. Aiello was advised by a team member that the “buy-money” had been located on the co-accused. No drugs were located in the car or on either of the accused.

[4] The applicant was transported by Det. Cst. Aiello, Police Cst. Shaw and Police Cst. Dowdle to 17 Division of the Oshawa Police Station. Before he was put in the police car, the handcuffs were removed from behind his back and he was recuffed in the front. He was placed in the police car at about 9:28 p.m. and instructed by Det. Cst. Aiello to keep his hands out and hold on to the roll bar above his head so that his hands would be visible at all times. Det. Cst. Aiello wanted to make sure that the applicant would not be able to access the front of his pants and possibly dispose of anything that could be hidden there. Det. Cst. Aiello sat in the back of the car with the applicant, Cst. Shaw drove the car.

[5] On the drive to the police station, which took about 10 minutes, Det. Cst. Aiello told the applicant that he believed that he was in possession of heroin and that the applicant would undergo a “detailed” search when they got to the police station. He asked the applicant to disclose if he had any drugs hidden on his person. The applicant stated that he had nothing on him.

[6] When they arrived at the police station they had to wait outside in the sally port until about 10:00 p.m. because of backlog. Det. Cst. Aiello spoke to the booking sergeant, while Cst. Shaw and the other police officer remained outside in the sally port with the applicant, who remained in the back of the police car.

[7] In a conversation that was recorded, Det. Cst. Aiello requested permission to conduct a strip search of the applicant, explaining that the applicant and the co-accused had been arrested as part of the undercover operation involving the purchase of one ounce of heroin, and although the police had found the cash to purchase the drugs on the co-accused, they had been unable to locate the drugs. Det. Cst. Aiello explained that based on his experience, drug traffickers commonly hide drugs in body cavities. The booking sergeant authorized the strip search.

[8] At about 10:11 p.m. the applicant was paraded before the booking sergeant who asked a series of questions. The applicant was asked if he had any medication, and he answered that his medication was in the car. He was asked whether he had taken any drugs or alcohol in the last 12 hours, and answered no to both.

[9] When asked if he had any injuries, the applicant replied: “I got kicked and punched when I was arrested. My backs really sore, my heads a bit sore.”

[10] The applicant was asked if he had any needles, and he answered “no”. The applicant was asked if he had any weapons, and he replied: “I might have a knife. I don’t know where it is. I might have left it in the car. I carry a utility knife.”

[11] Finally, the applicant was told by the booking sergeant that the police were about to conduct a detailed search, and asked if he had any contraband. The booking sergeant stated: “I would suggest that in the interest of everyone being safe that if you do have any contraband, that you turn it over”. The applicant responded that he had none. The applicant understood that a detailed search meant a strip search.

[12] Before being taken into the detailed search room, the applicant removed his belt, a necklace and his shoes and gave them to the police.

[13] The applicant was then taken into the detailed search room by Csts. Aiello and Shaw at approximately 10:17 p.m. The door to the room was closed. The detailed search room is a 6’ x 8’ room just across from the booking sergeant. The room has no windows, except a small window in the door with a sliding metal shutter. The shutter was closed. There is no video camera in the room.

[14] The applicant was in the detailed search room with Csts. Aiello and Shaw for six minutes. First Csts. Aiello and Shaw left the room, and the applicant was left alone to get dressed. After about two and one half minutes, the door was opened and the applicant was taken to the booking sergeant. He was permitted to call his lawyer at 10:31 p.m. (although he was only able to leave a message at that time), and he was held at the station until the next morning, when he was transferred to Central East Detention Centre.

Applicant’s Evidence

[15] The applicant testified that when he went into the detailed search room he was told to face the wall and remove all of his clothes, one piece of clothing at a time. He was told to put his hands on two circles just above his head on the wall and leave them there when not taking off his clothes. He took off his shirt first, then his undershirt, dress pants, underwear, and socks and handed them to the police. He was completely naked with his feet spread and his hands above his head.

[16] The applicant was somewhat confused about the chronology of the search and when he was told to keep his face to the wall. He initially stated that he was immediately asked to face the wall with his hands on the wall. He later stated that he was only asked to face the wall and put his hands up after he had taken off all of his clothes, at another point he testified that each article of clothing was inspected as he took it off and before another article was removed, and that he was looking at the wall as each item was inspected. He then stated that he remembered giving the officers all of the clothes at once and then facing the wall. He knew that only Cst. Aiello went through his clothing, but he testified that he could “hear” the officers sifting through his clothing.

[17] Cst. Aiello found a knife, dog repellent (an irritant spray) and one ounce of drugs in the applicant’s pants. The drugs were in a hidden pocket in the waistband of his pants. When the knife was found Cst. Shaw began to yell: “You brought a knife into my house” and hit him once in the back of the head. He denied that Cst. Shaw shouted at him not to look back and to keep his hands on the wall. He testified that he was facing the wall when he was hit. He could not recall the officers telling him that he was doing anything wrong.

[18] He was asked to squat or spread his buttocks (he could not recall which) and open his mouth, but he could not recall the exact order.

[19] The applicant testified that he was instructed to spread his buttocks with his hands, which he did, and the drugs hidden in saran wrap between his buttocks became visible. The arresting officer yelled: “there it is, get it”. He felt a brush against his buttocks and the drugs fell to the ground. He does not remember his hand being slapped, and agreed that no one touched his rectum or genitals. At the same time he felt a forearm against the back of his neck, between his shoulder blades, and he was pushed against the wall. His face and chest were against the wall, but he did not hit the wall hard or knock against it. When asked how he knew it was a forearm that hit him if he was facing the wall, he stated: “I guess I could kind of see it, maybe I kind of assumed that’s what it was”. He denied turning around or trying to reach for the package in his buttocks, and stated that he did not take his hands off the wall.

[20] He alleges that Cst. Shaw then punched him above his left eye, and Cst. Aiello picked up his dress pants and began whipping him on his lower back above his hips with his dress pants. He whipped him two or three times. He also remembers being hit in the back of the head by Cst. Shaw two or three times. The officers were yelling at him. He could not hear what they were saying because of ringing in his ears. He put his hands up and said he had had enough. Then Cst. Shaw hit him on the nose with the open palm of his hand. It was not that hard, but it made his eyes water. The officers then left the room and he got dressed.

[21] The applicant testified that he thought he was in the room for about 10 minutes and naked for five or six minutes.

[22] The applicant was held in custody at the police station until the next morning when he was taken to the Central East Correction Centre.

[23] The applicant testified that as a result of the interaction in the detailed search room, his back was sore, his head hurt a little bit, and he had a bruise above his left eye. All of these injuries were caused by the police in the detailed search room.

[24] The applicant relies on a photograph taken by the police the next morning at 7:30 a.m., which clearly shows a bruise or bump directly above his right eyebrow. Throughout his testimony he consistently referred to being hit above his left eye, and pointed to his left eye when referring to the injury. When asked about this inconsistency on cross-examination, he explained that it was a long time ago, he could not remember exactly which eye, but he knew that he was hit above his eye, and he could be mistaken as to which eye.

[25] The applicant also called as a witness the nurse who examined him at 6:20 p.m. the evening of October 8, 2016 at the Central East Correction Centre. The Health Care Record she filled in when she examined the applicant noted bruising above his right eye, both ears (the cartilage area), and his left flank. She explained that the flank is the area of the rib cage below the nipple and above the hip, on the side and not on the back. She testified that she did not indicate the size of the bruises because they did not appear significant. She described them as simple bruises, not alarming. The applicant did not disclose the source of any of these injuries. There was no need for follow-up or medical attention.

[26] In his testimony and in cross-examination the applicant was adamant that none of the injuries occurred when he was arrested and placed face down on the ground when handcuffed. He testified that when arrested he was kicked in the back lightly and hit in the head, but it was not “particularly hard” and he could just barely feel it. It did not hurt him, and the arresting officer was not rough.

Respondent’s Evidence

[27] Cst. Shaw testified that he became involved in the case only after the applicant was already in custody. He was tasked with driving the applicant and Cst. Aiello to the police station, and assisting Cst. Aiello with the strip search. Cst. Aiello was responsible for examining the articles of clothing; Cst. Shaw was responsible for monitoring the applicant.

[28] Cst. Shaw testified that on the drive to the police station the applicant was instructed to keep his hands on the roll bar above his head so they would always be in view, but he would frequently lower them.

[29] When they entered the detailed search room, the applicant was not compliant with instructions. He was told to face the wall and keep his hands above his head, on the wall, and not to move his hands unless directed to do so. But the applicant was constantly turning around and taking his hands down. These instructions are important for the safety of the officers who are conducting the search. Detainees who are strip searched cannot be handcuffed because they have to have their hands and feet free in order to remove the articles of clothing. This presents an element of risk to the officers who are conducting the search.

[30] During the search in the detailed search room the police found a cell phone, cash, drugs, dog spray and a knife in the applicant’s pants. The officers had heard the cell phone ring when the applicant was before the booking sergeant.

[31] Cst. Shaw testified that after the knife was found the applicant turned around and started to “encroach” on Const. Aiello. Cst. Shaw employed what he referred to as a “distracting tap” on the applicant’s face, on his cheek or chin. He described the tap as a “flick” of the wrist. The purpose of the flick on the face is to get the applicant to put his hands up to his face in a reflex movement to protect his face. This enables the officer to grab the hands at the wrist and put them back against the wall. Cst. Shaw believed that the applicant still had his underwear and socks on at that point, because the knife was found in the applicant’s pants.

[32] Cst. Shaw agreed that he probably did yell at the applicant when the knife was found, but did not use the exact words alleged by the applicant.

[33] After the applicant was redirected to the wall, and his underwear removed, he was directed to bend forward at the waist, and another package of drugs was located between his buttocks. At that point the applicant moved his hands from the wall and appeared to be reaching for the package, and Cst. Shaw grabbed his right hand at the wrist to prevent him from reaching it and to put his hand back against the wall. Cst. Shaw testified that he was concerned that the applicant would try to insert the package into his rectum or break open the package.

[34] Cst. Shaw explained that officers are trained to control prisoners during a search, and that most prisoners are compliant with instructions. Safety concerns relate not only to concealed weapons, but now also include the drugs themselves due to the rise of fentanyl and fentanyl laced drugs, since fentanyl presents a serious risk to anyone who handles it.

[35] Cst. Shaw denied striking the applicant, other than the distracting flick and grabbing his wrist twice. He did not punch the applicant in the head or hit his nose with his open palm. He acknowledged that the applicant could have bumped his head against the wall when he was redirected to the wall, but he has no recollection of this happening. He did not see Cst. Aiello strike the plaintiff with any object, but he might have grabbed the applicant’s other wrist.

[36] Cst. Aiello also testified that, while in the police car, the applicant kept taking his hands off the roll bar. He did inform the applicant that he intended to do a strip search, and suggested to the applicant that if he was concealing anything he should disclose it now because it would be found in the strip search.

[37] Cst. Aiello was the lead officer for the search, and kept a written record of the search. He explained that after they entered the detailed search room he gave the applicant routine instructions: the applicant was instructed to face the wall with his hands against the wall, not to look back, and to take off one piece of clothing at a time when instructed to do so. He was told not to remove the next piece of clothing until given specific instruction.

[38] Cst. Aiello explained that the order of clothing removal was usually socks, shirt, pants and underwear. As each article of clothing is provided it would be examined, both visually and by touch, to determine whether anything was hidden. As the search of each article was completed, the article of clothing would be placed on the ground.

[39] Cst. Aiello acknowledged that in 2016 the practice in Durham was that the detainee would be naked at the end of the search, although he indicated that this has not been the practice for at least a year.

[40] The Durham Regional Police Directive relating to searches that was in force in 2016 dated from 2014. It included several paragraphs under the heading “Detailed Search”, including an instruction that officers conducting such searches refer to the attached decision of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83. The attachment included paragraphs 81 to 105 of Golden.

[41] During the search Cst. Aiello located heroin and cash inside a concealed compartment in the waistband of the applicant’s pants.

[42] He also found the folding knife, a cell phone, and the dog spray in pockets in the pants. He acknowledged that it is possible that when the knife was found he and Cst. Shaw said something like; “You really brought a knife in here?”

[43] When he found the drugs in the waistband the applicant said: “There you go, you got it, now can we finish this?”. Cst. Aiello still believed that there was more heroin.

[44] Const. Aiello testified that the applicant kept looking back while he was examining the clothing, and at one point he did hear Cst. Shaw yell “don’t look back” and he heard what he thought was a slapping noise. He heard the noise only once.

[45] Cst. Aiello explained that it is important during the search that the detainee not look back while the search is being conducted. When someone has concealed something they have a tendency to look back when the police are examining the articles of clothing, and they may jump back or struggle to prevent the officer from finding the object as the officer gets close to it. He described looking back as a cause for concern.

[46] The applicant was asked to remove his underwear and do 3 or 4 squats and bend over. Cst. Aiello observed a piece of plastic that looked like a package in the applicant’s buttocks, and at that point the applicant went from bending to standing and reached around toward his buttocks. Cst. Aiello slapped his hand hard to prevent the applicant from reaching the package and possibly trying to conceal it. The item fell to the ground and Cst. Shaw grabbed the applicant’s wrist.

[47] The police did not conduct a body cavity search.

[48] After the search the applicant was instructed to get dressed and Cst. Aiello and Shaw left the room. Cst. Aiello testified that the applicant was naked for only one or two minutes.

[49] Cst. Aiello denied hitting the applicant with any article of clothing, and did not see Cst. Shaw hit the applicant in the head (apart from the one slap he heard).

[50] When the applicant was undressed Cst. Aiello observed no injuries and did not see any injury to the applicant’s right eye. He testified that nothing that happened during the search would explain the injury.

Analysis

[51] The applicant does not challenge the grounds for the applicant’s arrest or the grounds for the strip search, but focuses on the manner in which the strip search was conducted. He argues that he was stripped naked and beaten around the head and back without justification. If true, this would constitute a serious violation of s. 8 of the Charter, and is so offensive to societal norms that it should result in a stay of proceedings (R. v. Babos, 2014 SCC 16, at paras. 31 – 35).

[52] To be constitutionally valid, a strip search must be:

(1) Conducted as incident to a lawful arrest; (2) Conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest; (3) Based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; (4) Conducted in a reasonable manner.

R. v. Golden, at para. 99; R. v. Muller, 2014 ONCA 780, at para. 60

[53] As indicated above, this application focuses on the fourth requirement: that the strip search must be conducted in a reasonable manner.

[54] In Golden, the Supreme Court set out the following “framework” for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter (at para. 101):

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?

[55] This case raises factors 6 and 8. The applicant contends that the police used excessive, indeed gratuitous, force to conduct the strip search. Given the conflicting testimony, this issue requires factual findings to determine what level of force was used.

[56] With regard to factor 8, there is no dispute that the applicant was completely undressed at the end of the search, although there is a dispute as to the length of time that he was undressed, and the length of time may be a relevant consideration in assessing the reasonableness of the search.

[57] In Golden the Supreme Court held (at para. 194) that where the reasonableness of a strip search is challenged, the Crown bears the onus of proving its legality. The Crown must prove on a balance of probabilities that the strip search was conducted in a reasonable manner.

[58] With regard to the amount of force used against the applicant during the search, the applicant relies on para. 116 of the decision in Golden, which states:

We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety. If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specific circumstances. (Emphasis added)

Was the Strip Search Conducted with the Minimum Force Necessary?

[59] The applicant argues that his allegations of excessive force are corroborated by the nurse’s Health Care Record which confirmed bruising.

[60] The applicant testified that he was hit in four places during the search. The first was in “the back of the head”, which he also described as “the back of the head above the ear”. The second was above his left eye, although he later changed this to his right eye when shown the photo. The third was his nose, and the fourth was his lower back above his hips. He argues that the only credible explanation for these injuries is the force used during the strip search.

[61] The bruises reported in the Health Care Record do not directly correspond to the applicant’s allegations. The Record reported bruising of the cartilage areas of both ears, but the applicant did not allege that he was ever hit on either ear in the detailed search room. He alleged that he was hit on the back of the head, or the back of the head above the ear, but there is no evidence of bruising in this location. The Record reported bruising to his left flank, but the applicant did not allege that he was ever hit on his left flank, rather on his lower back above his hips. There is no evidence of bruising on his lower back. The applicant alleges that he was hit on the nose, but there is no recorded injury to his nose. Finally, the applicant alleged that he was hit above the left eye, but that it could have been his right eye, and a bruise above the right eye is confirmed by the photo and the Health Care Record.

[62] In considering the applicant’s testimony, I am troubled by the fact that, during his testimony and cross-examination, the applicant went out of his way to understate the injuries that he sustained when he was forced to the ground upon arrest, in order to take the position that they could not have caused the bruises. This evidence was inconsistent with his statement to the booking sergeant immediately after his arrest, where he stated: “I got kicked and punched when I was arrested. My backs really sore, my heads a bit sore.” If his back and head were sore at 10:00 p.m., it is entirely possible that the bruises seen by the nurse were the result of the force used to take him to the ground and handcuff him behind his back when he was arrested.

[63] While Cst. Aiello did not observe any bruises on the applicant during the strip search at 10:17 p.m., the evidence of the nurse was that the bruises she observed the next day were not significant or alarming. No expert evidence was called regarding how long after injury a bruise takes to appear, although common experience would suggest that a bruise caused by a light injury at 9:10 p.m. would not likely be visible only an hour later.

[64] I have also taken into account the video of the applicant as he left the detailed search room after dressing. He does not appear to be in any distress or pain. His arms are briefly crossed in front of his chest as if he were cold. At one point he very briefly touches his cheek, but he does not rub any part of his face or head where he alleges he was hit.

[65] Some of the evidence of force given by the applicant is in some ways consistent with the evidence of Csts. Shaw and Aiello, although the chronology is off. For example, it is entirely possible that the open palm hit to the nose described by the applicant is the same hit described by Cst. Shaw as a “distracting tap” on the applicant’s face, on his cheek or chin. This is also consistent with the “slap” heard by Cst. Aiello. The applicant described this hit as not being particularly hard, which is consistent with Cst. Shaw’s description of the diversionary flick. It is entirely possible that the applicant is correct, and Cst. Shaw flicked his nose rather than his cheek or chin.

[66] Cst. Shaw also acknowledges twice grabbing the applicant by the wrist and forcing him to face the wall with his hands raised. Cst. Shaw agreed that it was possible that when he pushed the applicant’s wrist against the wall his body was pushing the applicant. There is no dispute that some physical force was used during the strip search.

[67] Based on the evidence as a whole, I am satisfied, on the balance of probabilities, that the only force used on the applicant was the force described by Csts. Shaw and Aiello: the distracting flick to the face by Cst. Shaw, the slapping of the hands and brushing of buttocks by Cst. Aiello, the grabbing of the wrist and putting it back against the wall (twice) by Cst. Shaw. The issue remains whether even this amount of force was “the minimum force necessary to conduct the strip search” as required by factor 6 in Golden.

[68] The applicant argues that I should not accept Cst. Shaw’s evidence that the applicant was non-compliant when given instructions. He argues that Cst. Shaw exaggerated the level of non-compliance in order to justify the physical force used at the search. I agree with the applicant that on all videos the applicant appears compliant and cooperative, and that none of the officers watching him in the car for the 10 minutes they waited in the sally port before entering the booking hall appear particularly concerned with his conduct. While they continue to watch him closely, there is no suggestion that they are reaching into the car to take his hands away from his pants.

[69] That said, Cst. Shaw’s evidence was not that the applicant was combative or aggressive, only that he did not follow instructions. Cst. Shaw’s evidence in this regard is actually supported by the applicant’s own evidence, which revealed his confusion about what instructions were given and when and whether he kept his face to the wall while each article of clothing was being searched. I find that the applicant could not recall whether he was facing the officers or the wall during the search because he was likely doing both, as described by Csts. Shaw and Aiello.

[70] The requirement that detainees being searched face the wall with their hands against the wall is a reasonable requirement given the fact that these detainees are not cuffed during the process. There is nothing in the Golden factors to suggest that this manner of search is unreasonable. Given the applicant’s failure to consistently comply with this requirement, the officers’ efforts to compel compliance were reasonable in the circumstances.

Was the Applicant Completely Undressed at Any Time

[71] Cst. Aiello acknowledged that he did not return the clothing to the applicant until the end of the search, and that the applicant was completely undressed in the last minute or two of the search when he was asked to squat and bend over so that his buttocks could be visually inspected.

[72] In my view Cst. Aiello’s estimate of the time in which the applicant was undressed is more reliable than the applicant’s own estimate. I make this finding on the basis that the applicant overestimated the time taken for the entire detailed search, and the fact that the process described by Cst. Aiello would take at least a few minutes before the applicant was finally undressed.

[73] While factor 8 of Golden asks whether the strip search will be conducted so that the detainee “is not completely undressed at any one time”, the Ontario Court of Appeal has confirmed that this factor is just one consideration, and failure to comply with this factor alone does not necessarily lead to a violation of s. 8 of the Charter: R. v. Lee, 2018 ONCA 1067.

[74] In Lee, the defendant was naked for about one minute. The trial judge concluded that this very brief period of time was not unreasonable in the circumstances (sub nom R. v. McKanick, 2015 ONSC 2128, at para. 126.) In contrast, a co-accused had been left undressed for five minutes, and the trial judge concluded that this amounted to a violation of s. 8 of the Charter.

[75] The Court of Appeal upheld this decision, stating, at para. 15:

His strip search at the police station was not perfect, in terms of its compliance with the guidelines set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101. He should not have been left completely naked at all. However, in the circumstances of this case, it was a minor deviation. Moreover, we see no inconsistency between this finding and the trial judge’s finding that McKanick’s search amounted to a violation of s. 8. There was compelling evidence that Ms. McKanik was very distressed by the circumstances of her strip search. She was left naked for much longer than the appellant. Focusing on the time that it took, the trial judge did not err in finding that it was not a minor deviation from the Golden guidelines.

[76] Clearly the analysis is contextual, and a minor deviation from the Golden guidelines does not necessarily result in a violation of s. 8 of the Charter. For example, in R. v. Muller, 2014 ONCA 780, the Court of Appeal found that a strip search in which the appellant was required to stand naked for an unspecified period of time was in violation of s. 8 of the Charter. However, the court in that case also took into account other factors in reaching that conclusion: no supervisory authorization was sought or obtained; the officers had left the door to the search room open; the appellant was left naked facing a hallway accessible by other persons of either gender; the search was videotaped and available for viewing by others at various places in the station; and the appellant was given no choice about removing a plastic bag from between his buttocks.

[77] Nor does Lee stand for the proposition that all strip-search detainees may be left naked for up to one minute. The Supreme Court of Canada is clear that a detainee should not be left completely undressed at any one time. Often, this is easily achieved by returning an article of clothing, for example a shirt or t-shirt, after it has been inspected, so that the detainee can be partially dressed before the next stage of the strip search is conducted. This may not, however, always offer an ideal solution because a shirt or t-shirt may be long enough to obscure a visual search of the buttocks.

[78] Given the decision in Lee, however, and considering that all of the other Golden factors were complied with, I am unable to conclude that, in the circumstances of this case, this single departure from Golden constitutes an infringement of s. 8 of the Charter. While not perfect, the search was reasonable.

Conclusion

[79] For the reasons given, I conclude that the accused’s Charter rights were not infringed and that there is no basis for a constitutional remedy. The application for a stay or to exclude evidence is dismissed.

Justice R.E. Charney

Released: January 21, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PANKAJ BEDI Defendant RULING RE: SECTION 8 APPLICATION Justice R.E. Charney

Released: January 21, 2019