COURT FILE NO.: CR-22-30000046-0000 DATE: 20230425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAMAR BAILEY, KWAMI GARWOOD Defendants

Counsel: Jonathan Smith, Leslie Zamojc, for the Crown Maurice Mattis, Monte MacGregor, for Shamar Bailey Jessica Zita, Victoria Strugurescu, for Kwami Garwood

HEARD: February 22 - March 2, 2023

JUSTICE S. NAKATSURU

[1] Along with Kwami Garwood, Shamar Bailey is charged with first degree murder. Mr. Bailey seeks exclusion of his video recorded statement given to homicide officers after his arrest. Mr. Bailey was strip searched at the Kawartha Lakes Police detachment in Lindsay, Ontario, where he was arrested. After he was transported to 42 Division in Toronto, he was strip searched again. Two issues must be decided on this Charter application:

(i) Did the two strip searches of Mr. Bailey when he was arrested violate s. 8 of the Charter? (ii) If there was a violation, should the evidence of Mr. Bailey’s video recorded statement to Detective David Crampton on July 29, 2020, be excluded from his trial under s. 24(2) of the Charter?

A. THE STRIP SEARCHES

[2] Mr. Bailey takes no issue with the first strip search at the Kawartha Lakes Police detachment on July 29, 2020. Nonetheless, I make the following observations about that strip search which are relevant to remedy.

[3] The strip search was conducted in the Intoxilyzer room adjacent to the booking area of the detachment. A camera recorded the process, though Mr. Bailey is not visible on camera when he is strip searched. The area where he stands is digitally blacked out.

[4] Three things regarding the manner of the strip search are noteworthy. First, while the door to the Intoxilyzer room was generally closed, there was one time an officer stepped out, leaving the door open for a few minutes when Mr. Bailey was unclothed. Second, the officer had Mr. Bailey remove his clothing one item at a time but did not hand back the item to him after it was searched. Therefore, Mr. Bailey was required to remove all his clothes until at one point he was naked save for his underwear down at his feet. Third, there was a toilet open to view in this room. In front of the officers, Mr. Bailey urinated in the toilet. I do not know if he was naked or partially naked at this time.

[5] Nothing was found on Mr. Bailey during the strip search. Mr. Bailey was lodged by himself in a room to await the arrival of Toronto police officers for transport.

[6] P.C. Jossa and P.C. Marsh drove to the Kawartha Lakes detachment and brought Mr. Bailey back to 42 Division in the afternoon of July 29. Sgt. Delio was the officer-in-charge of the station during the booking. P.C. Marsh advised Sgt. Delio that Mr. Bailey had been strip searched at the Kawartha Lakes Police detachment and nothing was found. When Sgt. Delio asked if P.C. Marsh was satisfied with that, P.C. Marsh replied that he was.

[7] Sgt. Delio asked Mr. Bailey some questions during the booking process. Like at the Kawartha Lakes detachment and during his transport, Mr. Bailey was cooperative, friendly, and responsive to the questions asked of him. Mr. Bailey admitted to Sgt. Delio that he had, in the past 24 hours, smoked weed and had taken some codeine and one Percocet the night before. He denied being suicidal or depressed. Sgt. Delio authorized a second strip search. He testified that he did so as he did not know how thorough the strip search at the Lindsay detachment was. I find as a fact that this was the reason why Sgt. Delio authorized the second strip search.

[8] About two hours after Mr. Bailey was booked, Detective Crampton of homicide interrogated Mr. Bailey.

B. SECTION 8 OF THE CHARTER

The Caselaw

[9] The seminal case on strip searches is R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 90, 94, and 96-97. The Supreme Court of Canada set out the legal requirements for a strip search. The Supreme Court made it clear that strip searches cannot be carried out “as a matter of routine policy”: at para. 90. The search must be incident to arrest and the police must have reasonable and probable grounds that a strip search is necessary in the particular circumstances. The mere possibility that the person may have evidence or weapons is not sufficient. Aside from discovering weapons or evidence on the arrestee’s person, the police may also strip search people that are entering the general prison population.

[10] This is not the first time that a second strip search or multiple strip searches have been challenged under s. 8 of the Charter.

[11] In R. v. Foster, 2014 ONSC 7116, 325 C.R.R. (2d) 60 [1] a second strip search conducted by the RCMP after one was already conducted by the Canadian Border Services Agency (“CBSA”) was found to have violated s. 8, as there were no reasonable grounds for it given the RCMP’s failure to ascertain whether the CBSA had already performed a strip search and there was no opportunity for Ms. Foster to have acquired other contraband in the interim. Over a kilogram of cocaine was excluded under s. 24(2), given that the RCMP conducted the strip search as a matter of routine.

[12] In R. v. Ebanks, 2012 ONSC 5002, in a similar fact situation, the RCMP conducted a second strip search after one had been done by the CBSA. The reason for it given by the police was that sometimes things are missed in the first strip search. This reason was found to be insufficient to provide reasonable grounds for a second strip search. Given that the Charter argument was only raised on sentencing, the offender’s sentence was reduced.

[13] Multiple strip searches conducted during an accused’s trial in R. v. Madray, 2013 ONSC 5364 were found to be unconstitutional as the purported safety reason for them — that the accused was sitting at counsel table during his trial — did not give rise to objectively viewed reasonable grounds to ensure the safety of persons in the courthouse.

[14] In R. v. Jutras (2007), , 221 C.C.C. (3d) 543 (Ont. S.C.), an accused arrested for operating a motor vehicle with more than the legal limit of alcohol in his system was strip searched at the police station, and then again when he arrived at the remand institution. Both strip searches were found to be unreasonable. The first was unreasonable as there were insufficient grounds for it. The second was unreasonable because the Crown failed to show why the second strip search was necessary when Mr. Jutras arrived at the jail.

[15] In R. v. Clarke (2003), , 184 C.C.C. (3d) 39 (Ont. S.C.), the accused was subjected to three strip searches before being released on bail. One occurred at the police station shortly after he arrived. The second took place when he was taken to another part of the police station. The second strip search was conducted by two officers who were unaware that Mr. Clarke had already been strip searched. The third strip search occurred when Mr. Clarke was brought to the Toronto jail, after his surety did not arrive before bail court closed. The second and third strip searches violated the Charter because they were unjustified and unreasonable. The third strip search, even given the broader power to strip search when an accused enters a prison setting, was found to be improper, as there was no evidence to conclude that the accused could have acquired contraband during his show cause process.

[16] In R. v. B. (A.) (2003), , 110 C.R.R. (2d) 65 (Ont. S.C.), the appellant was frisk searched before being placed into a police cruiser, and then strip searched twice again: once when he was placed in the holding cells at the police station and again at court the next morning. Given that the accused was going to court cells the next morning, the first strip search was justified. The second strip search was unconstitutional because it was essentially a matter of routine and could not be justified on the basis that the court security officers were not told there had been a strip search at the station. That information had to be communicated.

[17] There is one case where a second strip search was upheld. It is R. v. Jackman, 2012 ONSC 3557 aff’d, 2016 ONCA 121, 334 C.C.C. (3d) 340, at paras. 35-39. Again, this was a border scenario. The accused was arrested for smuggling goods into Canada after border services officers discovered something hidden inside the lining of the bottom of her bag. Ms. Jackman was strip searched by the border services officers. Then after arriving at the RCMP detachment, Ms. Jackman was subjected to a further strip search by a RCMP officer. Ms. Jackman made numerous Charter violation arguments at her trial, including an argument that the first and second strip searches were unconstitutional. Though no evidence was obtained from the strip searches, she argued that these were s. 8 breaches that should be considered as a pattern of constitutional violations under the s. 24(2) analysis, including a violation of her s. 10(b) right to counsel. The first strip search was ruled unconstitutional as it was performed as a matter of routine policy. The border services officer failed to consider, subjectively, whether she had reasonable grounds for a strip search. However, the trial judge found that the second strip search was justified. In my opinion, this case can be distinguished from the other cases, since the trial judge in this instance found that Ms. Jackman’s volatile emotional state, her known history of suicidal behaviour, her telling the police officers that she was thinking of harming herself, and the fact that she had been in different locations while in custody at customs, which led to the officer’s concern that she may have picked something up, provided reasonable and probable grounds for the second strip search. In the final analysis, the trial judge held that any s. 8 violation was irrelevant to the exclusion of Ms. Jackman’s statements since there were ample grounds to exclude them due to a violation of her right to counsel.

[18] In summary, the courts have consistently frowned upon a second strip search done close in time to a first strip search, absent some clear and cogent reason based on evidence demonstrating its necessity.

Application to Mr. Bailey’s circumstances

[19] The reasons given by Sgt. Delio do not objectively justify a second strip search. The fact that Mr. Bailey had said he used drugs and could be entering a prison population would have justified the initial strip search, but it did not justify a second one: see B. (A.), at para. 32. As I have found, the only explanation for a second strip search was Sgt. Delio’s view that one was required because he did not know how well the Kawartha Lakes police questioned and strip searched Mr. Bailey. This does not suffice.

[20] Mr. Bailey’s circumstances have many parallels with the cases mentioned above. Like in Mr. Bailey’s case, the second strip searches in Foster, Ebanks, and Jutras were all performed after officers were aware of or did not inquire about the quality of a previous search and undertook one anyway. In Foster, the RCMP failed to ascertain whether the CBSA had already performed a strip search and whether a second one was necessary. Ms. Foster had also already been in custody since the time of the first search and would not have had an opportunity to acquire contraband. In Ebanks, the CBSA officer that carried out the second search was aware that one of her colleagues had already done an identical strip search within 24 hours. The officer relied on the fact that “[n]ot all officers search at the same calibre” and said that was why “each agency has their protocol to strip search”: at paras. 32-33. The fact that the officer was aware that a strip search had already been conducted and that there was no real opportunity for the accused to acquire contraband was highlighted by the trial judge in holding that the search was unconstitutional. In Jutras, the court noted that “the onus remained on the Crown to demonstrate why, having already searched Mr. Jutras at the police station before his show cause hearing, it was necessary to search him again when he arrived at Maplehurst [jail]”: at para. 101. The Crown did not. In the same way as these cases, Sgt. Delio simply relied on the fact that he did not know how well the Kawartha Lakes police searched Mr. Bailey. Like Foster, it does not seem that the sergeant took any meaningful steps to inquire whether a second strip search was actually necessary, but rather relied on his lack of knowledge about the quality of the first search. Furthermore, there was no basis to conclude that Mr. Bailey had acquired any contraband in between the strip search at the Kawartha Lakes Police detachment, and his transport and his arrival at 42 Division. To the contrary, P.C. Marsh specifically advised Sgt. Delio that he was satisfied with the fact a strip search had already been conducted.

[21] In my opinion, a second strip search should presumptively [2] be a violation of s. 8 unless the Crown establishes by compelling evidence a reasonable justification for why a second one was necessary. Not merely that it was convenient or done out of an abundance of caution. An objective justification might arise if the authorizing officer of the subsequent strip search becomes aware of some case-specific reason to question the thoroughness or adequacy of the first strip search. Not knowing if the first one was conducted properly is not such a reason. Another example may be where some intervening event presented a realistic opportunity for the detainee to come into possession of other contraband in the time between the first strip search and the second. Neither of these circumstances exist in this case.

[22] Mr. Bailey’s s. 8 right to be free from unreasonable search and seizure was violated by the second strip search at 42 Division.

C. EXCLUSION OF THE EVIDENCE UNDER S. 24(2)

Evidence “obtained in a manner” that infringed the Charter right

[23] Despite the Crown’s submission to the contrary, I find there to be a sufficient temporal and contextual connection between the s. 8 breach and the statement taken by Detective Crampton to engage the s. 24(2) inquiry: see R. v. Beaver, 2022 SCC 54, at para. 94; R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 78. The statement was taken relatively shortly after the strip search. It occurred at the same police station where the interrogation occurred and while Mr. Bailey was under arrest for first degree murder.

[24] While I agree with the Crown that there was little causal connection between the statement and the strip search, my having previously ruled that the statement was given voluntarily, it would go too far to conclude that the strip search had no impact on Mr. Bailey’s state of mind at the time he was questioned by Detective Crampton. At the beginning of the statement, Mr. Bailey specifically raised the issue that he had been strip searched twice. He called the decision to again strip search him, “retarded”.

[25] The Crown further argued that intervening Charter compliant conduct by the police after the strip search but before the statement, would qualify as a “fresh start”: Beaver at paras. 103, 106. The Crown pointed to the fact that Mr. Bailey received legal advice before his statement and was again told of his rights, including his right to silence by Detective Crampton. While unquestionably these acts would lessen any prior breach of a right to counsel, they do not sever the connection between the violation of Mr. Bailey’s s. 8 right or render the connection remote and tenuous. The Charter compliant behaviour of Detective Crampton is immaterial to the violation of Mr. Bailey’s right to be secure from unreasonable search and seizure.

Seriousness of the Charter-infringing state conduct

[26] I find that the violation is situated on the serious end of the spectrum of state misconduct: see Tim, at para. 82; R. v. McColman, 2023 SCC 8, at para. 58.

[27] First, the Supreme Court in Golden, at para. 19, considered the intrusiveness of a strip search as a factor in making the police misconduct serious. Any time the police mandate the unnecessary exposure of the most private and intimate areas of a person’s body without the requisite grounds, is serious state misconduct.

[28] Second, it has been many years since Golden was decided. The requirements for a strip search are well-known. Moreover, the caselaw on second strip searches unanimously dictate that absent some compelling reason for them, they violate s. 8 of the Charter.

[29] Third, Sgt. Delio was a very experienced officer-in-charge of the station. His wrongful decision to order a second strip search was not inadvertent or a minor mistake. Nor was it mitigated by inexperience or exigent circumstances. He was explicitly told by the Toronto Police Services officer, who had the most contact and familiarity with Mr. Bailey at the Kawartha Lakes Police station and during transport, that he was satisfied that a second strip search was not needed. Yet, Sgt. Delio ignored this and, without any objective basis to do so, subjected Mr. Bailey to a second one.

[30] Fourth, the shortcomings of the strip search done at the Kawartha Lakes Police detachment should also be considered. This further aggravates the seriousness of the violation.

[31] Thus, there is a strong need to disassociate the court from the police misconduct. I find that the first line of inquiry supports exclusion.

Impact of the breach on the Charter-protected interests

[32] As stated in Golden, at para. 83, strip searches unquestionably “represent a significant invasion of privacy and are often a traumatic, degrading, and humiliating experience for individuals subject to them” and “even the most sensitively conducted strip search is highly intrusive.” Thus, inherently, strip searches greatly impact the Charter-protected interest of privacy.

[33] Also, though I have no direct evidence from Mr. Bailey of the specific effect of the second strip search on him, I readily conclude it was negative. Not only did he later voice his objection to Detective Crampton, but also when told he was going to be strip searched again by Sgt. Delio, on the booking video, Mr. Bailey audibly and visibly reacted in clear displeasure.

[34] A final consideration. Mr. Bailey is Black. The racial context of this strip search should not be ignored. It is conceivable that in these circumstances, the arrestee may justifiably believe that they are being subjected to a discriminatory practice. Let me add quickly, I do not believe that the officer-in-charge acted for a racially biased purpose. Nonetheless, Mr. Bailey, a young Black man, was ordered to strip a second time, without any explanation for it, by an older White male. From the perspective of the racialized subject, the coercive and historically abusive nature of such a strip search power in this context would not be lost on them.

[35] The second line of inquiry markedly pulls in the direction of exclusion.

Society’s interest in the adjudication of the case on its merits

[36] The third line of inquiry does not really support admission. The Crown does not intend to lead Mr. Bailey’s statement to Detective Crampton as a part of its case; it only seeks to use it in cross-examination in case Mr. Bailey decides to testify in his own defence.

[37] Examination of the statement itself reveals that it is essentially exculpatory. Mr. Bailey either denies culpability in the offence or exercises his right to remain silent. While it might prove useful in impeaching his credibility, the Crown does not in any way contend Mr. Bailey’s statement is credible. While the Crown maintains that its availability for cross-examination assists the truth finding process, in my opinion, its utility in that regard is only marginal.

[38] The evidence is neither reliable nor crucial to the prosecution. The third line of inquiry does not advance the case for admission.

Final balancing

[39] This is not a close call. Truly, all three lines of inquiry dictate the exclusion of the statement. Admission of Mr. Bailey’s statement would bring the administration of justice into disrepute. Hence, it is excluded.

Justice S. Nakatsuru Released: April 25, 2023

COURT FILE NO.: CR-22-30000046-0000 DATE: 20230425 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – SHAMAR BAILEY, KWAMI GARWOOD Defendants

REASONS FOR JUDGMENT NAKATSURU J. Released: April 25, 2023

[1] Ms. Foster appealed her conviction and sentence, but the Court of Appeal did not re-engage with the issue of the constitutionality of the second strip search. See R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213.

[2] Whether it be called a “presumption” or not, Golden makes it clear the Crown must justify the search.