COURT FILE NOS.: CR-19-50000570-0 CR-19-50000781-0

DATE: 2020-09-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

AUSTIN TONKIN Applicant

Adam Schultz, for the Respondent

Daniel Baker, for the Applicant

HEARD: August 6 and 7, 2020

MR. JUSTICE PETER BAWDEN

Overview

1Austin Tonkin was driving a car when he was stopped and arrested for possession of a Schedule I substance. The arresting officer patted him down at the roadside and did not find anything. A second officer searched the car and found a bag containing drugs in the front passenger foot well. The arrest and search of the car were lawful.

2When Mr. Tonkin arrived at the station, the arresting officers requested authorization to conduct a strip search. The booking sergeant granted the authorization and explained his decision to Mr. Tonkin in clear and reasonable terms. Mr. Tonkin was taken off camera for 5 ½ minutes while the search was conducted in compliance with Toronto Police Service procedures. Nothing of evidentiary significance was found and, when Mr. Tonkin returned to the booking hall, he appeared to be unfazed by the experience.

3Mr. Tonkin has brought an application to exclude the evidence which was seized from his car based on a violation of his rights under section 8 of the Charter. He alleges that there were insufficient grounds to justify the strip search.

4Mr. Tonkin further alleges that the police breached his rights under section 10(b) of the Charter by not permitting him to consult with counsel prior to conducting the strip search.

5The Crown initially submits that there were sufficient grounds to authorize the search, both for evidential and security reasons. If the court should find that one or more of Mr. Tonkin’s rights were breached, the Crown contends that there is no connection between the violation of Mr. Tonkin’s rights and the seizure of the evidence.

6Finally, even if the court should find that the impugned evidence was obtained in a manner which breached one or more of Mr. Tonkin’s rights, the evidence should nevertheless be admitted under the Grant test.

The Issues

7This application can be resolved by answering the following questions:

A

Has the Crown established that the police had reasonable grounds to believe that a strip search was necessary?

B

Did the police infringe Mr. Tonkin's rights under section 10(b) by conducting a strip search prior to permitting him to consult with counsel?

C

Has the applicant demonstrated that the drugs found in his car were obtained in a manner which breached his section 10(b) rights?

D

In the event that Mr. Tonkin is correct in all of his Charter claims, should the evidence be excluded under the Grant test?

A

Has the Crown established that the police had reasonable grounds to believe that a strip search was necessary?

8There is no dispute that Tonkin was lawfully arrested on the charge of possession of a schedule I substance and that a plastic bag containing fine white powder was found within his arm’s reach at the time of his arrest.

9I am guided by the following legal principles:

• In order for a strip search to be reasonable, it must be related to the purpose of the arrest itself: Golden, 2001 SCC 83 at para. 92.

• The reasonableness of the search is established by the need to preserve evidence and to prevent a suspect from disposing of evidence before it can be recovered by police. Muller, 2014 ONCA 780 at para. 57

• A strip search cannot be justified on the basis of a mere possibility that evidence will be found, nor as a matter of routine policy: Golden, at paragraphs 94-95.

• The onus is on the Crown to establish that there were reasonable and probable grounds for concluding that a strip search was necessary in the particular circumstances of the arrest: Golden, 2001 SCC 83 at paras. 91-92, 105.

• The fact that a detainee will come into contact with other detainees either in the cells of a police station or in a detention facility is a significant factor in deciding whether a strip search is reasonably necessary: Golden, at para. 96; St. Clair, 2018 ONSC 5173 at para. 74.

10Mr. Tonkin came to the attention of police as a result of a wiretap project. Intercepted calls alerted officers to the fact that a drug transaction would take place in a parking lot near Highway 401 and Weston Road. Surveillance officers saw Mr. Tonkin's vehicle meet with the target vehicle and then observed a transaction take place.

11Constables Davy and Makarenko were uniformed officers patrolling 12 Division at the time of the transaction. They were detailed to stop Mr. Tonkin's car and arrest the occupants for possession of a schedule I substance. The officers pulled over Mr. Tonkin’s car as it was traveling north on Highway 400. Constable Davy arrested Mr. Tonkin and conducted a pat down search which did not reveal anything. Constable Makarenko did the same with a front seat passenger.

12Once both occupants of the car were secured, P.C. Makarenko returned to search Mr. Tonkin’s car. He immediately found a shopping bag in the foot well area of the front passenger’s seat. The bag contained a vacuum sealed brick of cocaine and a baggie of white powder. The baggie was not fully sealed but was instead knotted at the top.

13Constables Davy and Marenko transported Mr. Tonkin to 12 division for further investigation. Staff Sergeant Rick Armstrong was acting as the booking sergeant when they arrived. P.C. Makarenko asked the staff sergeant for authorization to conduct a level III search. He gave the following reasons for the request:

As this is a drug related offence and drugs have been located, I am going to be requesting a level III search to ensure that he does not have any more drugs on his person.

14Staff Sergeant Armstrong granted the request without any questioning of P.C. Makarenko. He explained his reasons for granting the authorization directly to Mr. Tonkin, saying the following:

A strip search is necessary given that this was a drug investigation and drugs have been found;

12 Division has a very strong “culture” of drugs, weapons and gang activity;

In his experience, people arrested in 12 Division under similar circumstances to Mr. Tonkin’s had been found to have weapons on their person which were not discovered by a pat down search;

People arrested on drug charges often try to ingest drugs hidden on their person which gives rise to medical emergencies;

It was anticipated that Mr. Tonkin would be held for a bail hearing and drugs could be passed on to other people.

15Staff Sergeant Armstrong advised Mr. Tonkin that the search would be conducted off camera by the arresting officers, both of whom were male. It would be done "quickly and efficiently and respectfully". All of this was explained in a professional and reassuring tone.

16Mr. Tonkin left the booking hall for 5 ½ minutes to be strip searched. The only item which was found which had not been discovered during the roadside pat down was a one-dollar coin.

17In his testimony on the voir dire, P.C. Makarenko expanded on his grounds for requesting the strip search. He testified that he recognized that the white powder which he had found in the car might be fentanyl and that a miniscule amount of that drug could cause illness or death to Mr. Tonkin, himself or fellow officers. The baggie containing the white powder had been within easy reach of Mr. Tonkin and was only knotted at the top. P.C. Makarenko knew that roughly 15 minutes had passed between the time of the transaction and the arrest. He believed that Mr. Tonkin could have retrieved a portion of the substance from the bag and hidden it on his person prior to being arrested. P.C. Makarenko also observed that Mr. Tonkin was wearing a thick hoodie which he believed could conceal hazardous substances such as fentanyl.

18P.C. Makarenko was asked in cross-examination why he had not provided all of these reasons to the booking sergeant at the time that he requested the search. He explained that his practice is to provide brief reasons and, if the sergeant requires additional information, he will answer whatever is asked of him. He adamantly denied the suggestion that strip searches are routinely conducted in all drug cases and that he only needed to say that it was a drug arrest in order for the authorization to be granted.

19I am mindful of the fact that ex post facto justifications for a search must be viewed with suspicion. P.C. Makarenko’s evidence at this hearing was far more fulsome than his statements in the booking hall, particularly with respect to his concerns about hidden fentanyl. I do note, however, that the booking hall video shows that both Constables Davy and Makarenko donned protective latex gloves prior to removing Mr. Tonkin from their scout car. Staff Sergeant Armstrong testified that this is a customary precaution which officers take to prevent exposure to fentanyl. Although P.C. Makarenko may not have voiced his concern that Mr. Tonkin was in possession of fentanyl when he requested the strip search, his actions on camera confirm that it was a live concern to him.

20Staff Sergeant Armstrong also testified on the voir dire. He acknowledged that his primary reason for authorizing the search was safety rather than securing evidence. He explained that he has acted as a booking sergeant in many divisions throughout Toronto and, in his experience, 12 Division has an especially high incidence of drugs and weapons being seized during the booking process. He attributed this to the prevalence of gang activity in the division. The officer testified that he had seen many occasions when potentially dangerous items were not detected by a pat down search but subsequently discovered during a strip search. He was very clear in stating that his principle concern as a booking sergeant is to ensure the safety of everybody in the station and, in his view, the circumstances of Mr. Tonkin's arrest demanded a strip search for safety purposes alone.

21Staff Sergeant Armstrong did maintain, however, that there were also reasonable grounds to authorize the search for evidential purposes. His reasons included the following:

• P.C. Davy had advised him prior to Mr. Tonkin entering the booking hall that the arrest was related to an ongoing project. This suggested to Armstrong that there was a greater probability that the offence was connected to organized criminal activity and, hence, a greater likelihood that Mr. Tonkin would be armed or carrying additional drugs on his person. It also increased the likelihood that Mr. Tonkin would be held for a bail hearing, an expectation which was confirmed during the booking process by both arresting officers.

• He had been advised that the arrest was for a schedule I substance. He knew that schedule I drugs were highly potent and easily hidden.

• He knew that Mr. Tonkin had been found in possession of drugs at the time of his arrest. He distinguished this from an arrest arising from a search warrant, where there would be less cause to believe that a suspect would be hiding drugs on his body at the time of his arrest.

22I do not accord any weight to Staff Sergeant Armstrong’s belief that the division where the arrest took place should be a material consideration in deciding whether a strip search should be authorized. Such a justification could easily lead to disproportionate strip searching of racial minorities or those of lower socio-economic status. The location of an arrest may be relevant if it conveys objectively verifiable evidence regarding certain types of criminal activity which are prevalent at or near that location. No such inference can be drawn from an area as large and diverse as 12 Division.

23Putting aside that aspect of the officer’s grounds, I accept the balance of his evidence. In my view, all of the circumstances cited above did make out a compelling basis to authorize a strip search. The need to conduct the search genuinely emanated from the arrest for possession of a schedule 1 substance and I am satisfied that it was not authorized as a matter of routine. Accordingly, I do not find that there was any breach of section 8 of the Charter.

B.

Did the police infringe Mr. Tonkin's rights under section 10(b) by conducting a strip search prior to permitting him to consult with counsel?

24P.C. Makarenko advised Mr. Tonkin of his rights to counsel at the time of his arrest. Mr. Tonkin indicated that he wished to speak to duty counsel and P.C. Makarenko advised him that this would be arranged once they returned to the station.

25P.C. Makarenko advised Staff Sergeant Armstrong at the outset of the booking process that Mr. Tonkin wished to speak to duty counsel. The staff sergeant completed the booking including the strip search without making any effort to facilitate Mr. Tonkin’s contact with counsel. In cross-examination, the staff sergeant was unapologetic for this failing. He testified that he could not provide Mr. Tonkin with an opportunity to speak to counsel privately until the strip search was completed. If he did so, it would risk the possibility that Mr. Tonkin would ingest the concealed drugs while unattended and that this could gravely endanger his health and put essential evidence outside the reach of police.

26The right of a detainee to consult with counsel prior to being strip searched arose in McGuffie, 2016 ONCA 365. The accused in McGuffie suffered multiple, egregious violations of his Charter rights. He was arbitrarily detained for an unconscionable length of time. He was not advised of his right to counsel at the outset of his detention and, during the time that he was being denied his right to counsel, he was subjected to an unlawful and degrading strip search. In recounting the facts of the case, Justice Doherty said at paragraph 22:

Nothing was said about giving the appellant an opportunity to speak to a lawyer before the search was conducted, despite Constable Greenwood knowing that the appellant wanted to speak to a lawyer. Nor did any of the officers allude to the possibility that the police should refrain from conducting the strip search until the appellant had an opportunity to speak with counsel.

27Later, when considering the exclusion of the evidence, Justice Doherty wrote:

68When Constable Greenwood finally got the appellant to the police station, his superiors did not express any concern about the appellant’s s. 10(b) rights or, more specifically, any concern about whether the appellant had been given the opportunity to speak to his lawyer before undergoing the proposed strip search.

28McGuffie was decided in 2016 and it can be plainly drawn from the decision that section 10(b) of the Charter requires that detainees be provided with an opportunity to speak to counsel prior to being strip searched.

29Staff Sergeant Armstrong testified that it is not his practice to permit a detainee to consult with counsel prior to being strip searched. His evidence strongly suggests that such a practice is unheard of in the Toronto Police Service and Crown counsel candidly acknowledged that this was in accord with his own experiences. Despite a clear statement to the contrary from the Ontario Court of Appeal, it appears that police routinely suspend 10(b) rights until they have strip searched detainees.

30In fairness to Staff Sergeant Armstrong, something has changed in the four years since McGuffie was released: fentanyl has fully infiltrated the streets of Toronto. Fentanyl is a highly toxic opiate which is frequently mixed with heroin and cocaine. It can be absorbed directly through the skin such that even incidental exposure can cause serious health risks to police, paramedics and detainees. Staff Sergeant Armstrong testified that in any circumstances where he concludes that a strip search is necessary, that search will occur prior to affording the detainee an opportunity to consult in private with counsel.

31The staff sergeant’s security concerns are valid and, in my view, they demand due consideration. It is not far-fetched to suggest that a detainee might take advantage of an unattended moment to retrieve a hidden sample of drugs and ingest them. Nor can I discount the possibility that a hidden supply of fentanyl could be used as a weapon against police by an angry or distraught detainee. The police concern about relinquishing physical control of a detainee prior to conducting a strip search is legitimate in certain circumstances.

32I am, however, bound by the conclusion of the Court of Appeal in McGuffie. Quite apart from being bound, Mr. Baker has pointed out that there are very important reasons why a detainee ought to be able to obtain legal advice prior to being strip searched. Those reasons include:

• Counsel can advise the detainee of the guidelines set out in Golden to ensure that the search is conducted in a reasonable manner;

• Counsel can advise the detainee to challenge the grounds for the strip search and request that the authorizing officer provide a full account of his or her reasons on the booking hall video;

• A detainee who has a chance to speak to counsel may elect to disclose the presence of hidden contraband which could obviate the need to conduct a strip search: McGuffie at para. 81.

• A detainee who is hiding drugs in a body cavity may disclose that fact to counsel within a privileged conversation and obtain advice as to how to protect his or her right to challenge the strip search while ensuring that the hidden drugs are extracted with minimal health risks.

33On the facts of this case, I find that the police did breach Mr. Tonkin’s 10(b) rights by failing to provide him with the chance to speak to counsel prior to conducting the strip search. Unlike McGuffie, this was a brief violation of section 10(b) which was predominantly motivated by concerns for safety rather than the retrieval of evidence. The decision was based on reasonable grounds to believe that the search was necessary and there is no cause to believe that it was intended for an abusive purpose or influenced by any improper bias. It was conducted in the least intrusive manner possible.

34If there had not been a reasonable basis to believe that Mr. Tonkin was in possession of a potentially toxic substance, the failure to facilitate his rights to counsel prior to the strip search might have taken on a much greater significance. In my view, police must turn their minds to whether it is feasible to permit a detainee to consult with counsel prior to conducting a strip search and, if it is not, explain to the detainee that his or her right is being temporarily suspended. It is simply not feasible for the police to continue to ignore the Court of Appeal’s findings in McGuffie.

C.

Has the applicant demonstrated that the drugs found in his car were obtained in a manner which breached his section 10(b) rights?

35Mr. Tonkin bears the onus of establishing that the violation of his section 10(b) rights should result in the exclusion of the evidence under section 24(2). In this case, that burden begins with demonstrating that the evidence which he seeks to exclude was obtained in a manner which infringed his rights.

36In Pino, 2016 ONCA 389, the Ontario Court of Appeal identified a series of factors to guide trial judges in determining whether evidence has been obtained in a manner which breached the rights of an applicant. The factors are summarized at paragraph 72 of the judgment:

72Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire “chain of events” between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

• But the connection cannot be either too tenuous or too remote.

37The application fails on this point. Mr. Tonkin is seeking to exclude evidence which was found in his car at the time of arrest. That evidence was seized as the result of a lawful arrest and search. Mr. Tonkin was immediately advised of his rights to counsel and the arresting officers made no effort to question him before he had an opportunity to speak to counsel. The 10(b) violation arises solely from the strip search which did not uncover any incriminating evidence.

38In my view, this chain of events does not in any sense connect the seizure of the evidence to the 10(b) breach. On the contrary, I find that the two events form part of distinctly different transactions which are not linked by any causal or contextual factor. The most that can be said is that the breach occurred within an hour of the evidence having been found. That limited temporal link is of no significance in the context of this case.

39The evidence was not obtained in a manner which infringed Mr. Tonkin’s 10(b) rights.

D.

In the event that Mr. Tonkin is correct in all of his Charter claims, should the evidence be excluded under the Grant test?

40In the event that I have erred in my analysis of the section 8 claim and in my conclusion concerning the manner in which the evidence was obtained, I would nevertheless find that the admission of the evidence at trial would not bring the administration of justice into disrepute.

41The first area of inquiry under the Grant test strongly favours the exclusion of the evidence. If Mr. Tonkin was strip searched in the absence of reasonable grounds to believe that such a search was necessary, it would follow that he was illegally subjected to one of the most intrusive forms of search known to our law. There is no doubt that the expectation of privacy with respect to one’s own body is extremely high; any Charter breach which violates that expectation is serious.

42The violation of section 10(b) in this case is also serious. For the reasons discussed earlier, there are compelling reasons why detainees should be permitted to speak to counsel prior to being strip searched. People who hide potentially toxic drugs on their person frequently do so in astonishingly insecure packages. A detainee who knows that he or she is concealing a toxic substance is badly in need of legal counsel. The denial of that right may be life threatening.

43Moreover, the failure to facilitate rights to counsel prior to conducting a strip search is a systemic failure. Staff Sergeant Armstrong testified that he never permits prior consultation with counsel and the Crown concedes that his practice is reflective of the entire Toronto Police Service. There has been ample opportunity for the TPS to establish a procedure to accommodate the Court of Appeal’s ruling in McGuffie. It is simply not open to the Crown to argue that the breach in this case was committed in good faith.

44The second inquiry under the Grant test does not favour exclusion.

45I begin by observing that the failure of police to allow a detainee to speak to counsel immediately upon detention is a significant breach of section 10(b). There is no obligation on the part of Mr. Tonkin to demonstrate that access to counsel would have altered the course of events or prevented him from attaining a material legal benefit: Noel, 2019 ONCA 860 at para. 27.

46In this case, however, the extent of the withholding was less than six minutes. The breach did not arise from carelessness on the part of the officers but rather from a prevalent misunderstanding of the law. The officers who dealt with Mr. Tonkin were attentive to his rights and treated him in a notably professional manner, facts which distinguishes this case from both Noel and McGuffie.

47There is no evidence that Mr. Tonkin experienced a significant impact as a result of the breach of his rights. Staff Sergeant Armstrong explained his reasons for ordering the search in plain and respectful terms. The search was conducting in the prescribed manner and, when Mr. Tonkin returned to the booking hall, he showed no ill effects from it. A strip search is inherently humiliating and anyone who experiences such a search is bound to be affected by it: Golden, at para. 90. Aside from what can be deemed in the circumstances, there is no evidence of a particular impact on Mr. Tonkin.

48The third area of inquiry also strongly favours the admission of the evidence. Mr. Tonkin was arrested as a result of highly reliable wiretap evidence and found to be in possession of 110 grams of cocaine and 27 grams of fentanyl. If there is a connection between the breach of his Charter rights and the seizure of the evidence, it is tenuous. Although the police cannot be said to have acted in good faith, they certainly were not abusive. If the evidence were to be excluded, the Crown would be obliged to abandon a prosecution which is founded on highly reliable evidence. That outcome would be quite contrary to the public interest in seeing allegations of this kind tried on their merits.

49Balancing all of these factors, I conclude that the admission of the evidence would not bring the administration of justice into disrepute and the application is therefore dismissed.

50I am grateful to both counsel for their well-placed concessions and insightful argument. Mr. Baker in particular should be commended for having quickly conceded what was inarguable and focusing instead on issues that had real promise for his client.