COURT FILE NO.: CR 18-214/18-220
DATE: 2021/05/28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Mimnagh, for the Public
Prosecution Service of Canada
Crown/Respondent
- and -
ORANE BROWN
J. Miglin, for the Applicant
Applicant
HEARD: May 25, 2021
REASONS ON APPLICATION WITH RESPECT TO SS. 8, 24(1) & 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS
A. J. GOODMAN J.:
[1] The applicant, Orane Brown (“Brown”) is charged with one count of possession for the purpose of trafficking in cocaine, one count of trafficking in cocaine, contrary to the Criminal Code. All of these offences are alleged to have occurred on October 6, 2017, in the City of Hamilton.
[2] The applicant seeks an order to exclude certain evidence seized by the police on the basis of a warrantless strip search conducted in an unreasonable manner by the police at the Hamilton Police Central station, pursuant to alleged breaches of s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”).
[3] The Crown called two police officers. The applicant did not testify and no affidavit was filed in support of his Charter applications.
Background:
[4] The facts are taken from the facta filed in this application and primarily from the viva voce evidence from the two officers who testified in this hearing.
[5] On September 14th, 2017, members of the Hamilton Police Service began conducting surveillance on 1 Gordon Street, in the city of Hamilton, in relation to an ongoing drug investigation. The applicant was the target of the investigation. On October 6, 2017, Hamilton Police obtained a search warrant for 1 Gordon Street, Apartment B. At approximately 2:20 p.m., the applicant was arrested by members of the Hamilton Police Service outside the residence of 1 Gordon Street. Police allege the applicant conducted a hand-to-hand transaction immediately prior to his arrest. On arrest, police located $1860 in Canadian currency. Upon execution of the search warrant, 16.02 grams of crack cocaine were located in a bedroom dresser within the residence.
[6] Following the applicant’s arrest, he was transported to the Hamilton Police Station by Police Constable Kalmats (“Kalmats”). Prior to placing the applicant in the police cruiser, Kalmats conducted a search of Brown’s
pockets, as well as a general pat-down search of his person. No clothing was removed during this search. Nothing of evidentiary value was yielded.
[7] The applicant arrived at the station at 3:26 p.m. At 3:41 p.m., Kalmats conducted another search of Brown. This search did not constitute a strip search. At 3:47 p.m., Kalmats and PC Glanfield (“Glanfield”) assisted in conducting a strip search of Brown in the shower area of the holding cells.
[8] During the strip search, all of the applicant’s articles of clothing were removed and he was completely naked, albeit for a brief time. Kalmats and Glanfield observed the search from inside of the shower room the strip search was conducted. The door to the room remained open or was non- existent while the applicant was strip searched. Neither search yielded any results. There were no video recordings.
Positions of the Parties:
[9] Mr. Miglin, on behalf of the applicant, submits that the only issue for this application is the manner of the strip search. The applicant argues that the search in this case did not comply with the prevailing jurisprudence and police policy. As such, the the applicant’s s.8 rights were violated.
[10] The applicant submits the remedy in this case is the exclusion of evidence under s. 24(2) and in the alternative, a stay of proceedings under s. 24(1) of the Charter.
[11] In response, Ms. Mimnagh for the Crown submits that since the applicant has conceded the grounds for the search incident to arrest, the only issue to be considered is the manner in which the search was completed. The strip search conducted in this case was not so egregious that the applicant’s rights under s.8 were violated.
[12] In oral argument, the Crown candidly concedes that the strip search may not have completely followed the prevailing jurisprudence or of the Hamilton Police Service policy, but that it was conducted in a reasonable manner. There was no violation of the applicant’s s.8 rights. Even if this Court finds that the strip search is found to be a violation of the Charter, the applicant has not met his onus for a stay of proceedings under s. 24(1) of the Charter. There are other available remedies to address the breach. Moreover, the evidence ought to be properly admitted under s. 24(2) of the Charter.
Legal principles:
[13] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[14] While the accused bears the onus of establishing standing to raise a s.8 issue, warrantless searches are presumptively unreasonable and, as such, the onus shifts to the Crown to establish on a balance of probabilities that the strip search was authorized by law; and the manner of search was reasonable. In other words, the onus is on the Crown to rebut the presumption of unreasonableness.
[15] In the seminal case of R. v. Golden, 2001 SCC 83, [2001] 1 S.C.R. 679, 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. Once it is determined that a strip search has occurred, the Crown has the burden of justifying its legality as it is a warrantless search. Strip searches incident to arrest are constitutionally valid at common law where they are conducted as an incident to lawful arrest for
the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. The Crown must establish that the police had reasonable and probable grounds justifying the arrest. It is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.
[16] In Golden, at para. 101, the Supreme Court of Canada provided a list of considerations in deciding how to conduct a strip search incident to arrest:
Can the strip search be conducted at the police station and, if not, why not?
Will the strip search be conducted in a manner that ensures the health and safety of all involved?
Will the strip search be authorized by a police officer acting in a supervisory capacity?
Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
What is the minimum amount of force necessary to conduct the strip search?
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?
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?
Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
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?
Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
Section 8 of the Charter - Principles Applied to this Case:
[17] At the time of the applicant’s arrest, the Hamilton Police Service had a Strip Search Policy in place directing how strip searches are to be conducted. The policy dictates that strip searches are to be conducted in a manner that interferes as little as possible with the privacy and dignity of the person being searched. Searches are to be conducted in a room or private area that is not equipped with video capabilities, and if a window exists, the window to the room must be covered. The policy further directs that prisoners shall be asked to remove one article of clothing at a time, the article of clothing is to be inspected, and after inspection, the prisoner shall be permitted to replace each article of clothing. The policy explicitly states that these searches shall not involve the removal of more articles of clothing than necessary, and that prisoner should not be left naked after a search. Furthermore, the policy directs that all strip searches are to be properly documented in the officer’s notebook, as well as in the Detention Log and in an Incident Report. The report shall detail grounds for the search, details surrounding the manner in which the search was conducted, and the name of the supervisor authorizing the search.
[18] In this case, while some facets of the policy or the direction from Golden were followed, some aspects were not. Despite the Crown’s assertions to the contrary, there was no cogent or proper record or log made of the search, or at least presented in evidence before me. The shower area was not private or fully secured from view. There was the possibility of traffic, mixed gender, as the search was conducted in the shower area with a hallway nearby and no door (albeit the evidence was confusing in that regard). Further, the applicant was left completely naked for a short period of time, with his clothing not immediately returned to him.
[19] The lack of details surrounding the strip search in this case is remarkable. The Crown did not call the police officer who actually supervised or directed the search.
[20] A flagrant breach of a police policy does not, per se, necessarily amount to a breach of the Charter. However, in this case, the failure to follow the procedures outlined by the Supreme Court in Golden at its progeny, especially as it pertains to the location, privacy and manner of the search amounts to a Charter violation.
[21] I find that the applicant’s s. 8 Charter rights were breached as a result of the manner in which the strip search was conducted in the circumstances of this case. I now turn to relief being sought by the applicant pursuant to s. 24(2) and 24(1) of the Charter.
[22] Section 24 of the Charter states:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[23] The onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.
[24] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on the overall repute of the justice system. The court is tasked with maintaining the integrity of, and public confidence in, the justice system. It is an objective inquiry and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[25] In Grant, at para. 75, the court stated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22, the Supreme Court of Canada points out that a reviewing court should be concerned or disassociate itself where the police knew or ought to have known that their conduct was not Charter-compliant.
[26] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused: Grant, at para. 70.
[27] At para. 71 of Grant, the Supreme Court of Canada outlined three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
[28] The main concern of the court is to preserve public confidence in the rule of law and its processes. Even a finding that a Charter breach falls at the most serious end of the spectrum is not dispositive of the s. 24(2) inquiry.
[29] An accurate assessment of the seriousness of a Charter breach requires an inquiry into where the police conduct falls on the continuum between good faith, lack of good faith, and bad faith.
Section 24(2) - Application of These Principles to the Present Case:
[30] As mentioned, there are three lines of inquiry at play under s. 24(2) of the Charter. I must consider each of the three factors and then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. Each factor is of equal import.
The seriousness of the Charter-infringing state conduct:
[31] In considering the seriousness of the Charter-infringing state conduct, the Court must ensure that it is not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights: Grant, at para. 74.
[32] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law: Grant, at para. 74.
[33] In Grant, the court, at para. 75 elaborated this factor by stating:
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.;
R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[34] The measure of seriousness then is a function of the deliberate or non- deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[35] It bears repeating that an individual in police custody has an expectation of privacy and that the manner of the very intrusive strip search will be conducted to the Golden standards.
[36] An officer’s subjective belief that an accused’s rights were not affected does not make the violation less serious unless the belief was reasonable.
[37] Glanfield testified that he merely provided assistance for the strip search. This officer was credible, honest and entirely candid. He conceded various points to counsel in cross-examination. Frankly, he admitted not knowing of the policy until this matter came to trial. He was unable to answer several questions regarding the manner of the search.
[38] Kalmats was the officer who effected the arrest of the applicant, conducted the initial search, provided the grounds to the booking sergeant and was present during the strip search. He, as well, was unable to answer many questions posed by defence counsel. His lack of notes and details of the strip search is disconcerting. Having admitted that there was nothing out of the ordinary, with the suggestions that in his experience strip searches are rare, one would expect some details to be noted and presented in testimony. This was not the case.
[39] In fact, it was readily apparent to me that this officer demonstrated a cavalier and somewhat lackadaisical approach to the entire event. His evidence, notes and recollection are sparse. He did not even know if there was a door to the area where the search was conducted.
[40] Kalmats was also not aware of the policy or of the principles flowing from the relevant case law. I pause to add that had the acts or omission merely have been a breach of police policy, I may not have been persuaded by the applicant. However, I agree with Mr. Miglin. Golden has been the law for almost two decades, and adherence to its principles are well established and adopted by police organizations.
[41] Given Kalmats’ testimony, I am persuaded that the police conduct in this case was deliberate and they adopted a cavalier attitude towards the applicant’s rights. The police actions could be considered flagrant and a lack of good faith. While I accept that these officers were merely present to assist in the strip search, their lack of training, notes or details of the search speaks to the overall approach related to these types of intrusive searches. jurisprudence. In any event, there were no police records filed. I have no evidence from the custody sergeant who actually conducted the
search in addressing the fundamental issue of the manner of the strip search or filling in the gaps related to this event.
[42] There is also no cogent evidence documenting the strip search or the filing of a prisoner or custody log related to the strip search process.
[43] The fact that both officers were not aware of the proper procedures, including leaving Brown fully naked, albeit briefly, in the open area of the cell shower, near a hallway leading to the female cells, without calling any other evidence, suggests that the Charter-infringing conduct arose from an unawareness of Charter rights.
[44] The seriousness of the Charter infringing conduct is significant in this case. The case of Golden was released in 2001. This is not an unsettled area of law, and strip searches are a practice commonly performed by the police in the execution of their duties. Further, there was a written policy in place at the time which directed how strip searches are to be conducted. Kalmats testified that he did not know whether it was permissible for an individual to be completely naked during a strip search. Glanfield was not even aware of the policy until this trial.
[45] Frankly, with the officers’ evidence of the rare occurrences of strip searches conducted by the Hamilton Police Service, there is no justifiable excuse for the police officers in this case to not know how to properly conduct a strip search in compliance with the law and their own police policies. It is incumbent on police officers to understand how to perform their duties in a manner that conforms with the law.
[46] The analysis under s. 24(2) requires a determination whether the evidence was obtained “in a manner that infringed” a Charter right.
[47] In R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, the Court of Appeal stated that the following factors should guide the 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.
[48] If I am satisfied that if the threshold test is met, I must then turn to the “evaluative component” of s. 24(2) and ask whether the admission of the impugned evidence would bring the administration of justice into disrepute.
[49] The search and recovery of the drugs from the residence was proximate to the strip search of the applicant. No drugs were found on the applicant at the scene. The warrant was being executed on the residence. I do not have the precise timing evidence on this point but the Crown did not dispute Mr. Miglin’s submissions on this very issue. I am satisfied that it was contemporaneous or contextual to the breach.
[50] In sum, the police conduct in this case was deliberate and they adopted a cavalier attitude towards the applicant’s rights. There appears to be a conscious disregard for Charter rights as it pertains to strip searches. This gives rise to a serious breach and the potential for systemic concerns. In my opinion, the admission of this evidence would send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. This factor weighs in favour of exclusion.
The impact of the Charter violation on the Charter-protected interests of the accused:
[51] The second branch of the test is outlined in Grant at paras. 76 and 78:
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not.
[52] In Grant, the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The seriousness of the intrusion upon the rights of an accused may vary greatly. The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[53] Strip searches are inherently humiliating and degrading, and as such the strip search in this case had a significant impact on the applicant’s privacy interests. The applicant has a high expectation of privacy in his own body; in fact, it could not be said that one has a higher privacy interest than in one’s own bodily autonomy. In this case, he was subjected to a search which left him completely naked in a room with police officers, with the door open and at least one other officer viewing the applicant from outside or inside the shower room while he was naked. The nearby
hallway with easy access led to other cell areas. There can be no greater impact on one’s right to privacy.
[54] The impact on the applicant's Charter-protected interests was significant in this case. My consideration of the second factor weighs in favour of exclusion.
Society’s interest in the adjudication of the case:
[55] In considering this factor, the question to be asked is “whether the truth- seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”. The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion. In Grant, at para. 83, the Supreme Court of Canada discussed how the importance of the evidence to the Crown’s case is a relevant consideration:
The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[56] The Crown submits that society’s interest in adjudication on the merits leans towards admission. The cocaine is real evidence. It was located in the residence and not on the accused either at the scene or upon a search. The importance of the evidence to the Crown’s case is another factor that may be considered in this line of inquiry.
[57] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As the Supreme Court stated in Grant, at para. 82:
The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.
[58] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. This is particularly crucial as the drug found in this case is cocaine. It is crystal clear that cocaine is a scourge on society. In this case, it cannot be said that the evidence of the drugs is of marginal value.
[59] The cocaine existed entirely independently of the Charter breach and is considered non-conscriptive evidence. There is no dispute that the illicit drugs found in the residence are of high significance to the prosecution. This is not a case that can be proven by the Crown through other evidence that does not involve a Charter breach. It cannot be said that the evidence is of marginal value.
[60] The evidence is of great probative value to the Crown’s case as a whole considering the truth-seeking goal of the trial. The exclusion of the drugs will likely leave the Crown with absolutely no evidence in support of the prosecution’s case. While I must be cautious not to place too much emphasis on this latter point, society’s interests in the adjudication of the case on its merits are best served by not excluding evidence that was obtained by means of a Charter breach, when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[61] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges, at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth- seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[62] The community needs to have serious cases tried on their merits, especially where drug-related crimes are committed. On the other hand, the severity of the breaches and the massive impact associated therewith are simply too powerful to ignore. Indeed, I am mindful that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 43.
[63] When considering all of the factors, I am persuaded that the evidence of the drugs ought to be excluded as its inclusion into evidence would bring the administration of justice into disrepute. I find that the balancing of all of the s. 24(2) factors militates in favour of exclusion of the evidence.
[64] As I have determined that relief ought to be granted under s. 24(2), I need not turn to the alternative argument raised under s. 24(1) of the Charter.
Conclusion:
[65] The s. 8 Charter application is granted.
[66] I am persuaded that the police officers’ manner of the strip search violated the applicant’s constitutional rights. I find that the Crown has not discharged its onus on a balance of probabilities to demonstrate that the warrantless strip search was reasonable and did not breach the applicant’s s.8 rights.
[67] Premised on a s.24(2) analysis, in this case, I conclude that the admission into evidence of the cocaine seized by the police would bring the administration of justice into disrepute. The evidence is excluded.
Released: May 28, 2021
A.J. Goodman J.
COURT FILE NO.: CR 18-214/18-220
DATE: 2021-05-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown/Respondent
- and -
ORANE BROWN
Applicant
REASONS ON APPLICATION WITH RESPECT TO SECTIONS 8, 24(1) & 24(2) OF THE CHARTER
A. J. GOODMAN J.
Released: May 28, 2021