COURT FILE NO.: CR-19-9063

DATE: 20220606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT HUSBAND

Defendant/Applicant

COUNSEL:

Javier Arvizu, for the Crown

Robert Husband, Self-Represented

HEARD: February 17-18, 22-25, 28, March 1-3, April 19 and 20, 2022

REASONS FOR DECISION RE: APPLICATION FOR A STAY OF PROCEEDINGS ON CHARTER GROUNDS

MCKELVEY J.:

Background

[1] The accused has been charged with a series of offences arising out of his possession and discharge of a firearm on October 11, 2019.

[2] The accused has brought this application for a stay of proceedings pursuant to s. 24(1) of the Charter on the basis that the applicant’s s. 7, 8, 10(b), 11(e) and 12 rights were infringed. The basis for the application is stated to be as follows:

• The applicant was violently beaten by police and was not taken before a Justice for four days.

• Police had no reasonable and probable grounds to believe that weapons or evidence related to the office (sic) for which the applicant was arrested would be discovered when they conducted a strip search upon the applicant.

• The manner in which the strip search was conducted interfered with the applicant’s privacy and dignity.

• The applicant was not properly informed of his rights to counsel nor was he given an opportunity to exercise that right.

[3] Subsequently, with the consent of the Crown, the applicant added two further grounds for the relief sought. The first was in relation to the alleged misconduct by his former lawyer who he discharged on the first day of trial. The second related to his treatment at the Central East Correctional Centre. The applicant asserted that he had been physically abused following a suicide attempt on September 8, 2021 while incarcerated at the Central East Correctional Centre. He also asserted that he had been kept in administrative segregation while he was in custody at the Central East Correctional Centre. Finally, he asserted that he had not received adequate medical treatment at the Centre.

[4] For oral reasons given during the course of the trial, I summarily dismissed the application with respect to the accused’s allegation of ineffective assistance of counsel. Following are my reasons with respect to the balance of the application.

Allegations Relating to the Accused’s Arrest on October 11, 2019

[5] On October 11, 2019 at around 4:08 p.m., police received a call that a firearm had been discharged in the area of 50 High Tech Road in the City of Richmond Hill. Multiple officers responded to the call and quickly identified the applicant who was initially behind some garbage bins. Detective Constable Steven Blenkhorn was the arresting officer.

[6] Officer Blenkhorn testified on the application. He stated that he first saw Mr. Husband a few seconds after he arrived in the area. Mr. Husband was climbing over a fence near the dumpsters. He was holding his hands as if he had a gun. However, Officer Blenkhorn could see that he did not have a gun in his hands. Mr. Husband then fell backwards onto the ground. Officer Blenkhorn approached him and rubbed his leg and he rolled over. At this point Mr. Husband was between two fences which were very close together. Officer Blenkhorn did not know whether Mr. Husband had a weapon on him. He attempted to get control of Mr. Husband and gave him commands. He told him he was under arrest and to put his arms behind his back. Officer Blenkhorn believed that Mr. Husband was resisting arrest and couldn’t rule out the possibility of him having possession of a firearm. He proceeded to punch him twice on the right side which allowed him to get control of his left hand. He punched him twice on the right side in order to create a distraction and to loosen the tension on his arm.

[7] Officer Steven Horner also gave evidence on the application. He described how the accused went over the fence. He could see Officer Blenkhorn giving Mr. Husband some commands. Officer Blenkhorn did not appear to have physical control of the suspect at the time. Officer Horner described how he put his foot on one of Mr. Husband’s wrists. He did not wish him to be able to move his arm.

[8] Officer Jeff Gourevitch also responded to the scene. He initially saw Mr. Husband hiding behind a dumpster. He gave some verbal commands by shouting “police” and “show me your hands” to which Mr. Husband did not respond. He saw Mr. Husband crouching behind the dumpsters. Mr. Husband pointed his hands as if he had a firearm, although he did not see an actual weapon. Officer Gourevitch also saw the suspect start to move away from the dumpster to a fence. The suspect managed to slide himself over the fence. He saw the suspect lying face down on the ground lying on top of his hands. He was not obeying commands. Officer Gourevitch stated that he delivered a “distraction kick” to the suspect’s thigh. He was still concerned at this point that the suspect might have a firearm. Subsequently the suspect’s arms came out from underneath his body. He was handcuffed. When questioned as to how hard he kicked the suspect, Officer Gourevitch advised that he hit him hard enough to be felt and to take his mind off his hands which were underneath him. In cross-examination, Officer Gourevitch acknowledged that when he first saw the suspect who had climbed over the fence, he was on his back. Later, however, when Officer Blenkhorn was overtop of the suspect, the suspect was on his stomach.

[9] Mr. Husband in his evidence recalled climbing over the fence. He testified that when he first came over the fence he thought the police had shot him in the stomach. He then fell backwards. He recalled Officer Blenkhorn being on top of him. He testified:

Mr. Blenkhorn is on top of me and he’s - starts punching me in the head calling me a piece of shit, fucking piece of shit, you fucking piece of shit, and then throwing me around like a ragdoll. Next thing I know there’s a whole bunch of officers on top of me punching me, giving me kidney shots, keep giving me kidney shots, kidney shots, like stepping on my legs, kicking my legs, I’m like, what the fuck is going on. I didn’t really – wasn’t sure what was going on. The next - it went on for a while and then the police got – they got me up off the ground, they – Blenkhorn ripped open my pants like this in the front to see if I had anything down my pants in the front, and then he opened my pants all the way in the back and he’s like – starts yelling in my face right away as he stands me up to the, to the car, and then he, he brings me to the car. When I, when I got to the police car I don’t even remember really much about – at the police car, I don’t remember them lifting my shirt, I remember thinking I got shot, I remember that.

[10] Mr. Husband’s recollection of events at the time of his arrest was very sketchy. On cross-examination he acknowledged that he might be mistaken and that no one actually punched him in the face. Later he acknowledged that Detective Blenkhorn might have punched him in the ribs in order to effect the arrest and handcuff him. His evidence on this point was as follows:

Question: So the reason that Detective Blenkhorn punched you in the ribs was in order to be able to effect the arrest and properly have you handcuffed?

Answer: I can’t say that.

Question: But you don’t remember it, do you?

Answer: No.

[11] The applicant asserts that the manner of his arrest violated s. 7 and 12 of the Charter. Section 25(1) of the Criminal Code provides that everyone who is required or authorized by law to do anything in the administration or enforcement of the law as a peace officer is, if he acts on reasonable grounds, justified in doing what is required or authorized to do and in using as much force as is necessary for that purpose.

[12] Section 25(3) provides that subject to ss. (4) and (5), a person is not justified for the purposes of ss. (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of anyone under the person’s protection of death or grievous bodily harm.

[13] The applicant argues in this case that the force used to arrest him was excessive and constituted a breach of his s. 7 and 12 rights. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada reviewed the legal principles on excessive force. The Court noted that police officers do not have an unlimited power to inflict harm on a person in the course of their duties. At times the police may have to resort to force in order to complete an arrest or prevent an offender from escaping from police custody. The allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.

[14] With respect to s. 25(3), this section of the Criminal Code prohibits a police officer from using a greater degree of force which is intended or likely to cause death or grievous bodily harm unless he or she believes that it is necessary to protect him or herself or another person under his or her protection from death or grievous bodily harm. The Court notes that the officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective – objective basis. It does not appear, in any event, that this subsection of the Criminal Code is relevant because this was not a situation where death or grievous bodily harm was inflicted on Mr. Husband.

[15] The Supreme Court in Nasogaluak notes that police action should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

[16] In R. v. Jarret, 2021 ONCA 758, the Ontario Court of Appeal notes that the accused does not have the burden of showing that excessive force was used. Instead, once an accused shows that the police used deadly force, a prima facie breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove that the force used was justified. This requires a subjective – objective analysis. The court has to be satisfied that the police officers subjectively believed that the use of force was necessary in these circumstances and the belief must have been objectively reasonable.

[17] In the present case I have concluded that the use of force exercised by the police in arresting Mr. Husband was reasonable. In reaching this decision I have considered that while police did not see a firearm in Mr. Husband’s possession, the possibility of him possessing a firearm clearly existed. The call was in response to a complaint of shots being fired at that location. I further accept Officer Blenkhorn’s evidence that he instructed the accused to put his arms behind his back and that the applicant failed to do so. I accept Officer Blenkhorn’s evidence that he punched the applicant two times on his right-hand side which allowed him to get control of the applicant’s left hand. I further accept Officer Horner’s evidence that he put his foot on the applicant’s wrist because he did not want him to be able to move his arm. Finally, I accept the evidence of Officer Gourevitch that he delivered a distraction kick to the applicant’s thigh as he was not being responsive to commands by the police.

[18] I do not accept that the police punched Mr. Husband in the face in light of his admission on cross-examination that he might have been mistaken about being punched in the face.

[19] I further accept the officers’ evidence that they believed that the steps they took were necessary in the circumstances. In my view, these steps were also objectively reasonable.

[20] The steps taken by the police to arrest Mr. Husband occurred in the context of a rapidly evolving situation in which Mr. Husband held out his hands as if he were holding a gun. While no gun was actually seen, this did not mean that Mr. Husband did not have a gun on his person at the time of his arrest. In light of Mr. Husband’s refusal to follow police commands, police were justified in taking the steps they did in order to arrest him at the earliest opportunity. Some physical contact with the applicant was inevitable in these circumstances. It is also significant to note that Mr. Husband was taken to a hospital in the evening following his arrest. There is no evidence before me to suggest that any significant injuries were suffered by Mr. Husband as a result of the arrest. In fact, the evidence of Constable Smith who accompanied Mr. Husband to the hospital that evening was that he was given an x-ray and a scan. He was discharged later that same evening with only a prescription for antibiotics.

[21] Each of the officers involved in Mr. Husband’s arrest had to exercise a degree of judgment as to how much force to apply and it had to be done under a volatile and dynamic set of circumstances.

[22] I adopt the reasoning in R. v. Creary, 2021 ONSC 4936, where Justice Molloy commented that it is not the function of the court to second guess how many kicks were necessary, or even if the situation could have been controlled without any kicks or blows. The use of these techniques, was, in my view, reasonable and proportionate in all of the circumstances. I have therefore concluded that the use of force was both necessary and reasonable in the circumstances. Further, I find the degree of force to be minimal; merely what was reasonable to control a suspect. I therefore conclude that the use of force by the police officers to effect Mr. Husband’s arrest was not excessive and did not violate his rights under the Charter.

The alleged failure of the police to advise Mr. Husband of his right to counsel and the failure to give him an opportunity to exercise that right

[23] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[24] In the Supreme Court of Canada decision in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, the Supreme Court noted that if the circumstances reveal that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10(b), and the means by which they can be exercised.

[25] In the Supreme Court of Canada decision in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, the Court held that the operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying or what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

[26] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court held that where there has been a change in circumstances that suggests that where the jeopardy faced by the accused has been significantly altered, the accused will be entitled to further advice on the new situation in order to fulfill the purpose of s. 10(b) by providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not.

[27] In the present case, the applicant was taken to a police car immediately following his arrest. Officer Preet Sharma was tasked with the responsibility of advising the applicant of the charges he faced and of his s. 10(b) rights. Officer Sharma’s interaction with the accused was audio recorded. It is apparent from the recording that the applicant was advised that he had been arrested for possession of stolen property. This is because the police believed the money found in his possession had been stolen. The gun which had been left in the Nissan SUV had not yet been located. Mr. Husband was also advised about his right to counsel. There was no issue raised with respect to the adequacy of what he was told. However, the applicant argues that he was not able to understand what was going on. In his evidence, Mr. Husband testified that he was “out of my mind” at this point.

[28] Officer Sharma testified that he believed Mr. Husband understood what he was being told about his rights to counsel. This is because Mr. Husband was answering his questions such as “what’s your name?” and “where are you from?”. While the answers to these questions were lies, the answers were responsive to the questions asked.

[29] Mr. Husband relies on the fact that he told Officer Sharma that he had been shot when in fact that was not the case. I have concluded that Mr. Husband was attempting to avoid being taken to the police station. His report of being shot followed immediately after he was told by Officer Sharma that he was going to be taken to the police station.

[30] After Officer Sharma read Mr. Husband the notice about his right to counsel, he was asked if he understood what he was told. He was also asked whether he wanted to contact a lawyer. Mr. Husband did not answer either of those questions. I accept Officer Sharma’s evidence where he testified as follows: “My view at the time were that you just don’t wanted (sic) to listen, you just don’t wanted (sic) to respond (sic) me.” I have concluded in these circumstances that Mr. Husband waived his right to consult with legal counsel. When cross-examined on this issue, Mr. Husband did not recall Officer Sharma talking to him. He stated he didn’t know whether his failure to respond to Officer Sharma was because he was making a choice not to answer him.

[31] I have concluded that while Mr. Husband had consumed cocaine on that day, he did have an operating mind which allowed him to understand what he was being told by Officer Sharma. This conclusion is supported as well by the fact that after Mr. Husband was taken to the police station he also responded to questions asked of him at the police station. It was noted in the evidence of Officer Sharma that the answers given by Mr. Husband at the police station were again not true, but were indicative of an understanding by Mr. Husband of the questions he was being asked. He testified as follows:

Yes, he was sitting straight. He, he was answering to Staff Sergeant Dinsmore’s answers - questions, and he was, he was clearly following all the, all the required information from – coming from Staff Sergeant Dinsmore.

[32] Officer Kevin Bell came on duty at 7:00 p.m. on the evening of October 11, 2019. He was asked to attend at Mr. Husband’s cell and provide assistance to detectives who came down later and attempted to speak with Mr. Husband. The detectives were trying to read the rights to counsel to Mr. Husband and to get his name. At this point Mr. Husband did not respond. He laid down and began to shake. This led to a decision to take Mr. Husband to hospital. The EMS was called and Mr. Husband was transported to the hospital. Officer Bell went independently to the hospital.

[33] Officer Bell testified that Mr. Husband was moved into a room in the emergency department at 19:56 hours. The nurses in the room were attempting to check his vitals and to draw blood. The nurses had some difficulty drawing blood and Mr. Husband started to yell at them and told them to hurry up. Mr. Husband appeared very aware of what was going on and that the nurses were having some difficulty drawing blood. At this point Mr. Husband was awake and conscious. He appeared to be of sound mind.

[34] Officer Bell advised Mr. Husband that he was going to read him his rights to counsel. At this point Mr. Husband closed his eyes and ignored him. Officer Bell read to Mr. Husband his rights to counsel. He also read to him the updated list of charges. Mr. Husband did not respond when questioned as to whether he wished to speak to a lawyer. Officer Bell had brought a cellphone to the hospital for this purpose.

[35] Officer Bell felt that Mr. Husband deliberately ignored him as he was very conscious and alert when speaking with the nurses. He was responding appropriately to the nursing staff when they were caring for him.

[36] Officer Kyle Smith was with Officer Bell when he read to Mr. Husband his rights to counsel. He confirmed that there was no acknowledgment by Mr. Husband when asked if he wished to speak with counsel. He was also of the view that Mr. Husband understood what he was being told and was simply ignoring Officer Bell.

[37] In my view it was reasonable for police to want to reiterate the right to counsel for Mr. Husband. This is because the charges he was facing had changed from simply possession of stolen property to more serious charges involving firearms. As with the earlier situation involving Officer Sharma, Mr. Husband ignored the rights advice he was given and refused to respond when questioned as to whether he wished to speak with a lawyer. In my view, having refused to respond, he again waived his right to legal counsel.

[38] In summary, I have concluded that Mr. Husband was advised of his right to counsel immediately following his arrest. He was appropriately re-advised about his right to counsel when additional charges were identified against him. He consciously refused on each occasion to respond to questions when he was asked if he wanted to speak with counsel. In doing so I have concluded that he waived his right to counsel.

[39] In the circumstances, I have concluded that there was no breach of Mr. Husband’s s. 10(b) rights.

Failure to be brought before a Bail Court within 24 hours

[40] Section 503(1) of the Criminal Code requires the police to bring an accused before a Justice without unreasonable delay and in any event, within a period of 24 hours following arrest. The applicant also notes that s. 11(e) of the Charter contains a provision that a person not be denied reasonable bail without just cause.

[41] Andreas Donne is a Special Constable in the Prisoner Management Unit at Newmarket Courthouse. He started his shift on October 12, 2019 at 6:30 a.m. He gave evidence on the application and testified that he dispatched a vehicle to bring Mr. Husband to the courthouse for a bail hearing on the morning of October 12, 2019. Mr. Husband subsequently refused to attend bail court. On the application, a copy of the transcript from the bail court on October 12, 2019 was entered as an exhibit. Initially Crown counsel advised that “John Doe” is refusing to come to the video screen. Duty counsel also advised the court that he had declined duty counsel that morning. The matter was held down and later, Mr. Donne attended before the Court. He advised that the John Doe was refusing to leave his cell at the present time. John Doe was identified during the court proceeding as the accused, Robert Husband.

[42] In Mr. Husband’s absence, a bench warrant was issued, discretionary, returnable on the 15th of October, 2019. Mr. Husband testified on the voir dire that he didn’t recall going to court in the morning except for being in court to have his fingerprints taken.

[43] In his evidence on cross-examination, Mr. Donne acknowledged that he may have had a direct conversation with Mr. Husband about his refusal to attend in court or the information may possibly have come from another officer. If the information came from another officer, Mr. Donne’s understanding that Mr. Husband had refused to attend in court would be hearsay. However, given that he had dispatched a vehicle to pick up Mr. Husband and that his name was on the list of cases to be heard on October 12, 2019, the inference I draw is that Mr. Husband declined to attend in court on October 12, 2019 when his case was called.

[44] In those circumstances, I have concluded that there was no breach of s. 503(1) of the Criminal Code, nor was there a breach of s. 11(e) of the Charter. Mr. Husband must take responsibility for the fact that he did not attend in court for his bail hearing on October 12, 2019.

Was Mr. Husband subjected to an unreasonable strip search contrary to s. 8 of the Charter?

[45] The applicant asserts that he was subject to an unreasonable strip search following his arrest.

[46] In his evidence, Mr. Husband recalled being in the police station and being taken to the strip search room. He complained that he wanted to go to the hospital because he felt he needed medical attention. Instead they told him to take all his clothes off. He complied and testified that he had no problems with that as he is used to strip searches. One officer, however, asked him to bend over and spread his butt cheeks. At this point Mr. Husband refused. He stated that after that he was put up against the wall by the one officer who grabbed him by the back of his neck and smashed his face into the wall. He then stated,

And I could see the officer behind and he puts his fingers together like this and proceeds to go like this, boom right up my ass.

[47] Mr. Husband later stated,

MR. HUSBAND: Up my ass. I am not proud, but I did call him a faggot. I’m like, you’re a fucking faggot, what the fuck are you doing, it’s rape, man. And then he did it again. They he pulled out a piece of plastic in his hand, and he held it in his hand, and, and that was it. And so now there’s another officer there, Ms. Richards is there, they’re all fucking….

THE COURT: Okay, just one second. Okay.

Mr. HUSBAND: Yeah, I seen Ms. Richards there, there’s another officer there, and they keep fucking - one officer’s stepping, stepping on my feet trying to get me to put my feet farther, and then one officer pulls my ass cheek to the side to see if there’s anything else in there, and then the one lifts, lifts up my scrotum to see if there’s anything under my scrotum.

THE COURT: Yes.

Mr. HUSBAND: So after that they brought me to the, to the holding cell and put a white suit in there. I asked them for water, I was super thirsty, I was sweating a lot, and I still wasn’t understanding what the hell was going on.

[48] Officer Sharma was the person who conducted the strip search under the supervision of Staff Sergeant Dinsmore. In Officer Sharma’s evidence he testified that while at the police station Mr. Husband reported that he had been shot. He was taken to the level 3 search room to be inspected for any injuries.

[49] Once Mr. Husband was in the level 3 strip search room he was told, “take your clothes off just to see, just to confirm you are not injured”. Right after that instruction Mr. Husband took all his clothes off and in Officer Sharma’s words, “once he took his pajamas with underwear out, he sort of throwed it towards me. There was a brown paper in his, in his underwear, small paper, and now at that point he was, he was, he was naked.” After Officer Sharma then observed a plastic piece in Mr. Husband’s buttock area. Mr. Husband became angry and Officer Sharma thought he was going to fight with him. He told him, “stay calm, put your hands up by the wall” and Mr. Husband complied.

[50] After Mr. Husband became angry Officer Sharma heard Sergeant Dinsmore call for the second officer to come in. Officer Sharma then grabbed a piece of plastic from Mr. Husband’s butt cheeks.

[51] In cross-examination, Mr. Husband acknowledged that he had a package of drugs in the cheeks of his buttocks. He agreed that Officer Sharma did not stick his fingers in his anus.

[52] Officer Richards is a female officer. She confirmed that in the police station Mr. Husband complained of a gunshot wound in his right leg. She did not note any injuries in the right leg. She further recalled Staff Sergeant Dinsmore ordering Mr. Husband to be checked for injuries.

[53] Officer Richards remained outside the search room with the door slightly ajar so she could hear what was going on inside for safety purposes. She was told that Mr. Husband was resisting during the course of the search and entered the room in order to ensure officer safety. At this point Mr. Husband was fully nude and there were some signs of a struggle. She then called for a male officer to assist in the search room and left the room herself.

[54] Staff Sergeant Dinsmore also gave evidence on the application. He recalled that at the police station Mr. Husband reported that he had been shot. He did not see any blood or bullet holes in Mr. Husband’s clothing, but he was still concerned about the possibility that he had been shot. Staff Sergeant Dinsmore stated that Mr. Husband wanted to go to the hospital. In order to go to the hospital, Staff Sergeant Dinsmore needed to make sure that he had actually been injured by a bullet. He stated that Mr. Husband came down the hall to the level 3 search room willingly. The purpose was to satisfy whether Mr. Husband had been shot. Officers Sharma and Richards went down the hall with him. Officer Richards remained outside in the hallway. When Mr. Husband was in the room Officer Sharma told him to take his clothes off. There were no issues at this time. Mr. Husband started to remove his track pants and no injuries were visible. At this point Mr. Husband was in his boxer shorts. He saw Officer Sharma remove a piece of paper from the boxer shorts. He advised Officer Sharma to now conduct a level 3 search. Staff Sergeant Dinsmore was concerned about security in the cell block for safety reasons.

[55] At this point Mr. Husband started to become agitated. He became borderline assaultive and was very upset. Officer Richards opened the door and came into the room. Officer Richards was asked to bring Officer Rousseau down to assist in the room.

[56] Staff Sergeant Dinsmore stated that while the original search was simply to check for any injuries, this changed when the paper was found in Mr. Husband’s underwear. Staff Sergeant Dinsmore believed that Mr. Husband had drugs on his person and the decision was made to do a strip search in order to ensure that no further drugs were on him.

[57] Staff Sergeant Dinsmore believed that Officer Sharma then took down Mr. Husband’s underwear. On cross-examination, Staff Sergeant Dinsmore stated that after the search was completed Mr. Husband was transferred naked to a cell across the hall. He was moved as he walked across the corridor from the level 3 search room to the cell. Staff Sergeant Dinsmore stated that Mr. Husband was not being cooperative enough to bring the bunny suit into the level 3 search room.

[58] I have concluded that Mr. Husband’s Charter rights were violated in the strip search which was conducted.

[59] The requirements for a Charter compliant strip search were outlined in the Supreme Court of Canada decision in R. v. Golden, 2001 SCC 83.

[60] At para. 99 of that decision, the Supreme Court sets out the requirements for a Charter compliant search. They state,

In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by the detainee. In addition to reasonable and probable grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.

[61] With respect to how a strip search is to be conducted, the court provided a framework for the police in deciding how best to conduct a strip search. Included in the criteria for considering how to conduct a strip search, the following points were included:

• 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 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?

[62] I have concluded that the arrest of the accused was a lawful arrest and this condition is therefore satisfied.

[63] However, there are serious concerns about how the search was conducted.

[64] My initial concern is that a strip search was not immediately justified based on Mr. Husband’s complaints of having been shot. This was not a search to discover weapons in Mr. Husband’s possession or evidence related to the reason for the arrest. In order to determine whether Mr. Husband had been shot it was not necessary in my view for the police to conduct a strip search. I accept, however, that this is what occurred in this case. The evidence of Mr. Husband is that he was told to remove his clothes and that is what he did. Officer Sharma’s evidence is consistent with Mr. Husband on this point.

[65] It is therefore apparent to me that this was a strip search from the beginning and Mr. Husband complied by removing all his clothes.

[66] Further, the search was conducted in a way that Mr. Husband was completely undressed.

[67] In order for police to see whether Mr. Husband had been shot it was not necessary in my view for him to remove all of his clothing. If the concern was about a gunshot wound to the stomach, all he needed to remove was his shirt. If the concern was with respect to him being shot in the leg, he could simply have been asked to roll up his pant leg and show police where he was injured. Alternatively, he could have been asked to remove his pants while leaving his underwear on.

[68] Had Mr. Husband been allowed to keep his underwear on it seems unlikely the small brown paper would have been visible and the search would have been completed without further incident. This is reflected in the evidence of Officer Sharma when he stated,

So when he, he – at once he took his pajamas with underwear out, he sort of throwed it towards me. There was a brown paper in his, in his underwear, small paper, and now at that point he was, he was, he was naked. I observed a plastic piece – oh, I, I told him – because at that point he was, he was very calm throughout the process, but at that time he was – his, his anger level was gone through zero to 50. He was very angry.

[69] I therefore accept the evidence of Mr. Husband and Officer Sharma that from the beginning of the search Mr. Husband was asked to remove all his clothing which disclosed the presence of the brown paper.

[70] I find that the conduct of the female officer, Officer Richards, was appropriate. She stayed out of the search room until such time as it was apparent that officer safety might be compromised. She then went into the room briefly and was instructed to contact another male officer to assist. She then left the room.

[71] The removal of the plastic piece by Officer Sharma from the buttock cheeks of Mr. Husband was not consistent with the expectation that the detainee be given the option of removing the object himself. The removal of the object by Officer Sharma appears to be a major reason for Mr. Husband to have become angry.

[72] Finally, I find that the transfer of Mr. Husband naked from the search room to the cell area across the corridor was inappropriate. The reason given by Staff Sergeant Dinsmore was that Mr. Husband was not being cooperative enough to bring the bunny suit into the level 3 search room. However, I am of the view that this should at least have been attempted or alternatively, the corridor where Mr. Husband was being moved across should have been cleared of any other personnel.

[73] For the above reasons, I have concluded that the strip search did constitute a s. 8 breach of Mr. Husband’s Charter rights.

Conditions in the Central East Correctional Centre

[74] The applicant alleges Charter breaches in connection with his treatment at the Central East Correctional Centre where he has been in custody since his arrest. The allegations with respect to Charter breaches are divided into three separate areas. The first relates to the adequacy of his medical treatment at the centre. The second relates to an alleged beating he received following a suicide attempt on September 8, 2021. The third Charter challenge relates to his being kept in administrative segregation for an extended period of time.

[75] The applicant takes the position that all of these factors breach his s. 12 rights not to be subjected to cruel and unusual treatment.

[76] With respect to the applicant’s assertion that he has not been provided with adequate medical treatment, I note that in his evidence on the application, the applicant testified as follows:

ANSWER: …okay, there’s – I had a bad infection in my face where the doctor had to cut my face open and put a wick in my face and like it kept spreading to my and then down here to my neck. I got a bad infection here on my neck, I had like seven on my butt where they had to cut my butt open and put a wick in them. These are all like symptoms of Lupus, like – which could be Lupus, or it could be something else. I kept having an infection on nipple, I kept having pink eye, and the doctor just kept – just gave me antibiotics and not, not doing any of the testing. And then I got this big purple thing on my skin, my whole chest turned purple, the insides of my legs turned purple and the love – my love handles, and every time water would hit my skin it would burn like hell. And I kept seeing the doctor, I’m like, man, something’s like fucked, you gotta do something, like check – like something’s wrong, man, this is not right. They finally did a blood test, and he came back and he, he, he seen my rheumatoid levels were high, which we already knew, and he said that with all the other symptoms you have, he’s like I think you have Lupus, you probably have Lupus. And I’m like well, great, right on, you know, and he didn’t – he, he took pictures of my skin and forgot to prescribe the medication, and ever since then he has not given me anything to – for me for pain. He wants me to be on Methadone for pain management, and I’m like there’s healthier medications I can be on than Methadone for pain management. Methadone is like toxic, like, you know what I mean. It’s, it’s super addictive, it’s bad for you, it’s like, you know, and – so he put me on that and – like he actually – the psychiatrist put me on Motrin to help me alleviate with inflammation and my joints and the medical doctor actually kept me off them, took me off of them.

THE COURT: When you talk about the medical doctors, who are you talking about?

ANSWER: Dr. McMillian, the doctor at Lindsay, Central East Correction Centre.

THE COURT: And, so your belief is that he’s not treating your Lupus?

ANSWER: Yeah, he’s not. I have been having super bad - hard problems walking in the last - recent months, he hasn’t even seen me. And then like I tried weaning down on the Methadone because I was supposed to see the specialist in January, I was hoping that I could see the specialist and the specialist could prescribe medication that’s healthier for me and, and like consistent with my symptoms for, for Lupus. I don’t need to be - you don’t give people on the street Methadone for Lupus, you know, so I, I was weaning myself down, now I’m down to 15 milligrams, so I was hoping to see the doctor in January, and I can get on a different medication. Now I don’t know when my appointment is, and they didn’t even do blood work or x-rays before my consultation was supposed to be happening in January. They didn’t even do x-rays or blood work.

[77] Barbara Konkle is the Manager of Security and Investigations at the Central East Correctional Centre. In 2019 she was the Manager of the Stabilization Unit. In her evidence she described the availability of health care on the unit. She described how the regular nurses are on the unit every day distributing medication or for the Centre’s methadone program. She also described how the majority of the inmates in the mental health units are followed by the Royal Ottawa Health Care Centre. A doctor is available from the health care centre typically every four weeks. The centre also has an in house psychologist.

[78] On the issue of a s. 12 Charter breach, the applicant bears the general onus to establish an infringement of the Charter. In bringing the challenge, he bears both the burden of proof on the evidence and the ultimate burden of persuasion with respect to the alleged Charter infringement. See R. v. Aziga, 2008 Carswell Ont. 4619, at para. 30.

[79] In the present case the applicant has not led any medical expert evidence whatsoever in connection with the health care related matters that he asserts constitute a s. 12 breach. In the absence of any medical expert opinion it is simply not possible to conclude that the health care provided by the Centre to the applicant failed to meet an acceptable standard. I therefore conclude that the applicant has failed to establish a breach of his s. 12 rights in connection with the provision of health care at the Central East Correctional Centre.

[80] With respect to the alleged assault on September 8, 2021, the Crown filed an inmate incident report. This was a business record which set out the circumstances of what occurred as recorded by Central East Correctional Centre staff.

[81] According to the incident report, the applicant had his cell window covered completely in brown paper bags with writing on them that said “do not resuscitate”. It was noted that the inmate had been displaying bizarre behaviour earlier in the day and was being actively followed and monitored by mental health and psychology staff. When staff opened the cell door they found the applicant with two ligatures tied around his neck. He was purple in colour. A medical alert was called and the ligature was removed from around his neck.

[82] The incident report then goes on to record that the following events occurred:

Inmate was placed on constant watch due to active suicide attempt and was directed to leave cell and complete a strip search. Inmate indicated that he would not comply, jumped to his feet and told responding staff to “get the fuck out my cell”. Unit Sergeant attempted to apply handcuffs to the front due to the inmate’s profiled behaviour and inmate shoved a unit officer in the chest, jumped on the bed and grabbed two handfuls of pencils to use as weapons. Inmate then attempted to rush at staff with pencils in his hands. Unit Sergeant deployed OC spray. Force was used to control inmate. Inmate was actively resistant the whole time. Restraints were applied to the rear and inmate was taken to the shower where he was decontaminated. Inmate was taken to cell A-20 where he was strip searched compliantly. Inmate began threatening staff and attempted the rush cell door again. Staff were able to disengage and back out cell. Inmate immediately pulled sprinkler head in cell and began threatening self harm with metal sprinkler pieces. Constant Watch Officer was assigned. Inmate refused photos, refused charges, assessed by RM and A and I completed. No injuries noted to inmate at this time. Ligature was secured in an evidence bag. KLPS contacted.

[83] To some extent the applicant’s evidence confirmed what is contained in the incident report. However, there are significant differences as to what happened after staff removed the ligature from his neck. In his evidence the applicant testified as follows:

I’m like – and I – I’m like – I just panicked at the time, I jumped up on my bed, I’m like, get the fuck outta my cell, get outtta my cell, ‘cause I was just panicked, right, and – and ‘cause I’ve been beat up there by the guards badly before. And I’m like – I just wanted them outta my cell, I just wanted my space. And – like obviously I just went through traumatic thing. Then Sergeant Knowles pepper sprayed me in my face, I was standing up on the bed, it’s like, it’s like two and a half feet above the floor, and I turned my face like this, ‘cause he’s got me right in the face, I’m like take me to the fucking shower, and then the other officer – the other sergeant, grabbed me by my arm and pulled me down off the, off the bed on the floor, head first into the corner of the – where the wall meets the floor, like this, smashed my head into the floor, so my head was lying on the floor like this with my ear on the floor, and my other ear like this, and the sergeant started kneeing my fucking head off the fucking floor, and all the other - my mattress – I have – I sleep on the floor in, in segregation ‘cause they don’t have a table and stuff, so I like to draw, right, it helps with my mental illness and stuff, so it helps me keep calm.

[84] Later on the applicant testified,

[L]ike five guards piled on my back, my face on the floor like this, I’m like, get off my fucking head, get off my fucking head, boom, he knees his head off my – on my floor again, and he’s like, how’s your fucking head, how’s your fucking head? And then they twisted me up and I’m – and put me like this, handcuffed, bring me to shower and then they put in the - my head – they grabbed me by head, pushed my head in the water for about three seconds, and then pulled me out, and they brought me to another observation cell, they bring me in there and they smash me into the floor on the thing and they started ripping my clothes off, I’m like, what the fuck you’re getting my clothes, and they’re like, you’re take – we’re taking your clothes or we’re going to fucking lay you out again. Well, I’m like frig, well, here, take them, man. So I - they take off my clothes, I’m like I need to have a proper shower, you guys pepper sprayed me, they’re like you got me, I’m like, that’s not a shower, man, you guys washed my face off for three seconds. They wouldn’t take me to the thing, they ripped off and, and they left my cell.

so I pulled my - this – my eyebrow piercing thing out and the popped the sprinkler in the cell, the fire, the fire sprinkler, you know what I’m talking about? I popped to get the water to come out of there because my skin was fucking burning, and, yeah, so I’m standing there showering in, in the thing and then I took the piece of the sprinkler, I sharpened it on the floor and I started slashing up in front of them and I was trying to get this vein my neck to come out, like this, and I told them – the manager I’m going to cut my fucking vein right out of my fucking neck right in front of them, that these people are driving me to kill myself.

[85] Mr. Husband subsequently testified that he saw a doctor two days later. The doctor felt his ribs, “like just lightly like that over the, over the moving blanket, not on my skin, he felt it like this, he’s like, oh, your ribs aren’t broken, and then he took the, the, the stethoscope, listened right here on my thing and then sent me on my way back to my cell”. According to the applicant’s evidence he kept complaining that he was in pain and he reported it to his legal counsel.

[86] Clearly if the applicant’s evidence is accepted there was excessive force used by correctional centre staff following his suicide attempt as opposed to the description contained in the incident report.

[87] While the information contained in the incident report is admissible evidence as a business record, I find it significant that Sergeant Knowles who was one of the officers who prepared the report was never called as a witness and was therefore not subjected to cross-examination on the contents of the report. The only testimony which I heard on this application about this incident came from the applicant who was subjected to cross-examination. I am prepared to accept his evidence as to what happened on this incident and do find that it was grossly disproportionate to what was required and therefore, it constituted a breach of the applicant’s s. 12 rights. There is however, no evidence before me to suggest that the applicant sustained any permanent injuries as a result of this incident.

[88] With respect to the applicant’s detention in administrative segregation, the Ontario Court of Appeal in Francis v. Ontario 2021 ONCA 197, [2021], 154 O.R. (3d) 498 (ON CA), recently reiterated that keeping inmates in administrative segregation (or solitary confinement) for more than 15 days constitutes a s. 12 breach of the Charter. The Court further confirmed that keeping a seriously mentally ill inmate in administrative detention, “for any period of time”, violates their Charter rights. In the present case it would appear that the applicant would meet the definition of a seriously mentally ill patient. He had attempted suicide prior to his incarceration at Central East Correctional Centre. On this application he filed a number of medical records. These records document that the applicant has a history of suicidal ideation and previous suicide attempts. In light of this documentation I have concluded that the applicant would be considered to have a serious mental illness and that any period of time he spent in administrative segregation would be considered a breach of his s. 12 Charter rights.

[89] Central East Correctional Centre filed documentation at the hearing setting out the times when the applicant was held in segregation-like conditions. Most of the time which he spent in segregation occurred at the beginning of his detention. This is consistent with the evidence of Barbara Konkle who testified that there was heavy use of segregation up until 2019. By 2020 a new program was introduced on the Stabilization Unit where the applicant was housed which introduced programs for inmates. In her evidence, Ms. Konkle stated that the whole point of the Stabilization Unit is for “short-term housing”. Once an inmate is stable they go to a different unit where they are out of their cells for full day or half days. The Stabilization Unit is not intended for long term housing.

[90] Ms. Konkle also testified that on multiple occasions the applicant has been offered to relocate from the Stabilization Unit and has refused a transfer. I accept Ms. Konkle’s evidence on the above-noted points. In his evidence, Mr. Husband confirmed that “sometimes” inmates are given the option as to where they wish to stay in the facility. He was also aware that there were forms which allowed inmates to request specific units.

[91] Based on Ms. Konkle’s evidence, the applicant was kept in segregation-like conditions for a period greater than 15 days for a total of 82 days between October 12, 2019 and December 19, 2019. Since that time, the time he has spent in segregation has been dramatically reduced. Ms. Konkle’s evidence, which I accept, is that in total, up to the present time, the applicant has been kept in segregation-like conditions for a total of 232 days. I find that the applicant’s incarceration in segregation-like conditions for a total of 232 days does constitute a s. 12 violation of the applicant’s rights.

Remedies

[92] The applicant seeks a stay of the proceedings against him based on the violation of his Charter rights. This, however, does not necessarily follow. The usual approach is to take these breaches into account at the time of sentencing if the accused is convicted. In the Nasogaluak decision, the Supreme Court of Canada comments that incidents alleged to constitute a Charter violation can be considered in the sentencing, provided that they bear the necessary connection to the sentencing exercise (see para. 48). The Court goes on to note that the more egregious the breach, the more attention a court will likely pay to it in determining a fit sentence. In the present case the Crown’s position is that in the event a Charter breach is found, the appropriate remedy is to take this into account at the time of sentencing.

[93] In its decision in R. c. Piccirilli, 2014 SCC 16 (SCC), the Supreme Court of Canada sets out the legal principles which apply to a stay pursuant to s. 24(1) of the Charter. The Court notes that a stay of proceedings is the most drastic remedy a criminal court can order because it permanently halts the prosecution of an accused. In doing so, the truth seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. Nevertheless, the Supreme Court has recognized that there are rare occasions where a stay of proceedings for an abuse of process will be rendered. These cases generally fall into two categories:

1. Where state conduct compromises the fairness of an accused’s trial (the “main” category).

2. Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category).

[94] At para. 32 of the Piccirilli decision, the Supreme Court sets out the test to be used to determine whether a stay of proceedings is warranted under either category. The test consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[95] In the present case there is no reason to believe that the state conduct in question has compromised the fairness of the accused’s trial. Therefore, if a stay is to be granted it can only be granted pursuant to the residual category on the basis that proceeding to trial would undermine the integrity of the judicial process.

[96] With respect to the residual category the Supreme Court has commented in the Piccirilli decision at para. 35 as follows:

By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[97] At the second stage a balancing is required. On the issue of balancing, the Supreme Court states at para. 41 of their decision,

However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[98] The Court in the Piccirilli decision also makes it clear that where the residual category is invoked, the prejudice to be considered is the prejudice to the integrity of the justice system and the remedies must be directed towards that harm. The goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[99] The Court also makes it clear that stays should only be granted rarely and in the “clearest of cases”. It is only where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases that a stay of proceedings will be warranted. In other words, does the advantage of staying the charges against the accused outweigh the interests in having the case decided on its merits.

[100] Finally, where there are multiple instances of misconduct, an individual approach to each incident will only be appropriate. However, at para. 73 of its decision in Piccirilli, the Court states:

That said, I should not be taken as suggesting that an individualistic approach should always be followed. Indeed, a judge who is required to balance several instances of misconduct against the societal interest in a trial will almost certainly wish to consider the conduct cumulatively and in its full context. As well, there may be cases where the nature and number of incidents, though individually unworthy of a stay, will require one when considered together.

[101] In considering the state conduct in this case, I am satisfied that at least the first stage of the test; that is that the state has engaged in conduct that is offensive to societal notions of fair play and decency. I conclude that the incidents which occurred during the applicant’s detention while awaiting trial are issues which involve the integrity of the justice system and offends society’s sense of fair play and decency.

[102] With respect to the second requirement, however, it would appear that an alternative remedy is available. That remedy would consist of taking the Charter breaches into account at the time of sentencing if the applicant is convicted on any of the charges he is facing. In my view, this should be adequate to dissociate the justice system from the state conduct in question.

[103] I turn now to the balancing stage. In considering this issue, I note that the offences the applicant are charged with are serious. They involve the unlawful possession and discharge of a firearm which posed a significant risk to public safety. The proliferation and unlawful use of firearms in our society represents a serious concern for members of the public.

[104] With respect to the strip search issue I have concluded that on its own, this Charter breach would not justify a stay of the proceedings against the applicant. In coming to this conclusion I have taken into account that the applicant’s assertion that he had been shot necessitated some kind of investigation by the police to determine if the applicant was injured. While the manner in which the search was conducted was unacceptable, it was reasonable for the police to investigate whether the applicant had been injured by a firearm and required medical treatment. This was not an egregious violation of the applicant’s Charter rights.

[105] With respect to the assault on the applicant following his suicide attempt, I have also concluded that this Charter breach does not reach the level of justifying a stay. While I accept that some injury was suffered by the applicant as a result of this assault, I have also concluded that no permanent injury was sustained by him. I also accept that the staff at Central East Correctional Centre were dealing with a highly emotional and panicked person at the time the assault took place.

[106] With respect to the issue of the applicant’s administrative segregation, I have concluded as well that this would not justify a stay. In coming to this conclusion, I find it significant that a large portion of the time spent in administrative segregation was in 2019. Since that time the Central East Correctional Centre has attempted to minimize or eliminate the use of administrative segregation and has introduced new programs for the inmates. I also find it significant that the applicant had the opportunity to leave the Stabilization Unit but declined to do so.

[107] I have also considered the cumulative effect of the Charter breaches. However, in my opinion, this is not one of the “clearest of cases” that demands a stay of proceedings. I have concluded that instead, that the interests of society in having a trial on the merits should prevail. I have concluded that if the applicant is convicted on any of the counts against him, these Charter breaches will be taken into account in addressing the appropriate sentence. This represents in my view the most appropriate means of responding to the Charter breaches in this case.

Conclusion

[108] For the above reasons, I find that a stay of the withing proceedings is not warranted and the applicant’s application is therefore dismissed.

Justice M. McKelvey

Released: June 6, 2022