Court File and Parties

COURT FILE NO.: CR-22-91105070 DATE: 2024-01-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DAMAINE SITLADEEN Defendant/Applicant

Counsel: Charles Lamy, for the Crown James Miglin, for the Defendant/Applicant

HEARD: January 8-10, 2024

RULING ON CHARTER SS. 8 AND 9 APPLICATION

CHARNEY J.:

[1] The Applicant, Damaine Sitladeen, is charged with several firearm related offences including possession of a prohibited firearm and an over capacity magazine. He is also charged with possession of fentanyl and cocaine, and possession of stolen property (a motor vehicle) over $5,000.

[2] He alleges that the police lacked reasonable and probable grounds to arrest him, and that his arrest was motivated, at least in part, by unconscious racial bias. He also alleges that the police exceeded their authority to search his car incident to his arrest, and that the police lacked reasonable and probable grounds for a subsequent strip search at the police station, which he alleges was conducted in a manner that violated his Charter rights.

[3] He seeks the exclusion of the evidence seized during the investigation.

[4] The Crown takes the position that there was no violation of Mr. Sitladeen’s rights. In the alternative, the Crown’s position with respect to the exclusion of the evidence depends on which, if any, of the alleged Charter violations is accepted by the Court.

[5] For the reasons that follow, I find that there was no violation of any of Mr. Sitladeen’s Charter rights.

Facts

The Arrest

[6] Just after midnight on June 22, 2022, five police officers were conducting a RIDE program on the Highway 427 off-ramp at Major Mackenzie Drive in the City of Vaughan. Constable Grewal was responsible for reading the license plates of the cars as they approached the stop. He would relay that information on the police radio to Constable McNamee, who would “query” the plates through the police computer system to see if any information came back about the plates or the vehicle connected to the plates. Constables Keung and Barry were on the driver’s side of the vehicles and would take turns speaking with the driver who rolled down the window at the spot check. Constable MacDonald was on the passenger side of the vehicle.

[7] PC Grewal testified that he stood on the passenger side of the vehicle and checked the license plate of every single car that came to the stop. He would obtain that information before the car got to the front of the line so that the information was available when the car got to Constables Keung and Barry.

[8] At 12:27 a.m. PC Grewal saw a white Toyota Corolla approaching and relayed the plate number – CVKV 581 – to PC McNamee.

[9] PC McNamee queried the plate on his laptop. The vehicles in the line were not visible to him. The computer can provide information from four databases: CPIC for criminal information, MTO for Highway Traffic Act information, YRP for York Regional Police information and LEAP for information from other police services.

[10] The plate came back as registered to GP Water Heater Trust and “missing”. The MTO database was the only response received.

[11] This meant that the registered owner of the plate had reported the plate “missing” to MTO. The owner must report the plate missing to MTO in order to obtain a new plate.

[12] PC McNamee testified that, based on his experience as a police officer, there is a high correlation between missing plates and stolen plates, particularly when a missing plate is attached to a vehicle.

[13] PC McNamee informed PC Grewal that the plate was missing. PC Grewal told PC McNamee that he intended to arrest the driver for possession of stolen property. PC McNamee testified that the decision to make the arrest was PC Grewal’s.

[14] PC Grewal requested PC McNamee to move his marked police cruiser to the front of the line to prevent the white Corolla from fleeing when the occupant was arrested. From that vantage point, PC McNamee could see the driver being removed from the car and arrested, but he was not otherwise involved in the arrest.

[15] PC Grewal testified that when PC McNamee told him the plate came back as missing, he immediately made the decision to arrest the driver for possession of stolen property and directed constables Keung and Barry to arrest the driver. He also directed PC McNamee to position his vehicle to prevent the car from trying to escape, since an attempt to escape would present a safety risk to officers and the public.

[16] PC Grewal testified that he believed that he had reasonable and probable grounds to arrest the driver based on the “missing” status of the plate combined with the fact that a missing plate should not be on any vehicle on the highway because “missing” means that the owner of the plate is not in possession of the plate. PC Grewal explained that a missing plate “should not be on any vehicle”.

[17] PC Grewal testified that he has been involved in numerous investigations of stolen and recovered vehicles and license plates. In his experience as a police officer, when a missing plate is found on a vehicle, it is a stolen plate. All of the officers who testified gave similar evidence.

[18] While PC Grewal was focused on possession of stolen property, I note that driving a car with a missing plate is also a violation of s. 12(1)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) which provides:

12. (1) Every person who,

(d) uses or permits the use of a number plate upon a vehicle other than a number plate authorized for use on that vehicle;

is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $1,000 or to imprisonment for not more than thirty days, or to both, and in addition the person’s licence or permit may be suspended for not more than six months.

[19] PC Grewal testified that there was nothing other than the missing plate and the fact that the plate was on a vehicle on the road that made him decide to arrest the occupant of the car. He did not see the car being driven, so there were no indications of impairment.

[20] He explained that he must act quickly at a RIDE stop because the car is on a highway off-ramp, and there are other cars lined up behind it. It is on a live lane of traffic with vehicles backed up behind.

[21] PC Grewal was clear that he received the information about the missing plate while constables Keung and Barry were still talking to the driver of the car in front, and he made the call to arrest the Applicant while the Toyota was still approaching constables Keung and Barry. This happened just before constable Keung and Barry spoke to the occupant of the Toyota. As the Toyota moved up, he could see that the car had only one occupant.

[22] The driver was arrested by constables Keung and Barry at 12:29 a.m. and escorted to their police cruiser. At 12:30 a.m. Constable MacDonald got into the Toyota and drove it from the off-ramp onto a gravel shoulder so that it would not block the highway and so the officers would not be conducting the search in the midst of traffic.

[23] Constables Keung and Barry were less certain about the chronology of events.

[24] Constable Keung testified that Constable Barry told the Applicant to turn off his car and get out of the car when he pulled up to the stop. Once the Applicant got out, Constable Keung told the Applicant that he was under arrest for possession of stolen property, placed handcuffs on him, and escorted him to the police cruiser for a quick pat down search for officer safety and to read him his rights to counsel and caution. The Applicant had no identification information on him.

[25] Constable Keung asked the driver to identify himself, and the Applicant answered that his name was “Jamal Smith”, and his date of birth was October 13, 1989.

[26] Constable Keung could not remember exactly when he asked the Applicant to identify himself. There is no audio recording of their interaction until they are walking to the police cruiser (approximately 30 – 45 seconds after his arrest), and at that point Constable Keung is already referring to the Applicant as “Jamal”.

[27] Once in the police cruiser the Applicant told Constable Keung that his real name is Damaine Sitladeen at 12:33 a.m..

[28] Constable Keung testified that “at some point” he was advised by Constable Grewal that the plate was “missing”, but he could not recall if he was told to arrest the Applicant or if he made that decision himself. He thought that he might have been told about the missing plates after he began speaking to the Applicant, but he could not recall specifically.

[29] Constable Barry could not recall the exact chronology at the roadside stop. He thought that the Toyota might have pulled up before he was told that the plate was missing. He could not recall what was said before the arrest. His notes indicate that Constable Grewal informed him that the plates were missing as the vehicle pulled into the spot check, that Constable McNamee drove his cruiser in front of the Toyota, and that Constable Keung spoke to the driver. When asked which of these events happened first, he answered that they all happened at the same time.

[30] At 1:58 a.m., some 90 minutes after the arrest, Constable Barry typed up notes of the events. The way the notes are written, they suggest that Constable Keung asked the Applicant to identify himself prior to being arrested. Constable Barry stated that this was not in his written notes, and that he does not completely remember the order that these events occurred. He agreed that there was no reason to ask the Applicant to identify himself before they knew that they were going to arrest him.

The Search

[31] Following the arrest and moving the car to the side of the road, the police began a search of the car incident to the arrest at 12:30 a.m. The officers testified that the purpose of the search was to find evidence related to the charge of possession of stolen property. The police were looking for documents like vehicle ownership, driver insurance, and driver’s license that might relate to the ownership of the Toyota and the status of the license plates. The Applicant did not have any identification on his person when he was arrested.

[32] The police started in the front of the car, then moved to the back, and finally to the trunk.

[33] The police found the ownership document in the glove box in the front of the car. The ownership listed the Vehicle Identification Number (VIN) and a corporate owner, GP Water Heater Trust.

[34] The police then examined the VIN affixed to the driver’s side dashboard (visible from outside the car) and the VIN on the label affixed to the driver’s side door. The VIN on the ownership was different than the VINs affixed to the vehicle by one digit. A VIN is composed of 17 characters (digits and capital letters); the VINs affixed to the vehicle had only 16 characters. The third digit was missing on the VINs affixed to the vehicle. Moreover, the VIN affixed to the driver’s side door was upside down, and there was a glue mark around the edge indicating that the VIN sticker had been moved.

[35] The police queried the VIN number affixed to the car, and no results were found, confirming that it was not a valid VIN.

[36] Constables Barry and Grewal testified that this was evidence of “re-Vinning”, which is evidence that the car was likely stolen and “re-Vinned” to mimic another car and conceal that it was stolen.

[37] The chronology of the search is as follows:

• 12:30 a.m.: Search of front seat area of car commenced.
• 12:33 a.m.: Applicant tells Constable Keung his real name
• 12:34 a.m.: Search of the back seats of the car begins.
• 12:35 a.m.: Applicant re-arrested on an outstanding firearms related Toronto warrant.
• 12:36 a.m.: Photo identification of the Applicant (Health Card and Ontario Photo I.D.) and drugs found in a backpack in the back seat of the car, Applicant re-arrested for possession of a controlled substance.
• 12:43 a.m.: Firearm with over-capacity magazine found in a hidden compartment in the front console of the car, Applicant re-arrested for possession of a firearm.

[38] The video of the arrest taken from the front of the police cruiser shows that the trunk of the Toyota opens at 12:34 a.m., just after the back doors were open and approximately two minutes before the drugs were found. In order to see this clearly, the video had to be zoomed into the Toyota, which is in the background of the video. No one can be seen opening the trunk, and it is likely that it was “popped” open from the latch or button by the driver’s seat.

[39] PC McNamee testified that he did not search the trunk of the car until after the drugs and the gun were found. This is consistent with his notes. When shown the video of the arrest, which shows the trunk of the Toyota opening at 12:34 a.m., PC McNamee was confused. He did not know who had opened the trunk and testified that it would not be his practice to search the trunk until after the drugs were found. Nothing relevant to the charges in this case was found in the trunk.

[40] I am satisfied from my review of the video, that although the trunk was popped open at 12:34 a.m., the police did not begin to search the trunk until 12:38 a.m., approximately one and one-half minutes after the drugs were found in the back seat of the car. No police officers can be seen at the trunk until that time, when one is clearly visible with his flashlight.

Strip Search

[41] After being taken to the police station, the Applicant was searched again by Constable Keung before he was placed in a cell. Constable Keung explained that the Applicant was searched at that time because there is better lighting at the police station than at the roadside where the original pat-down search took place, and they have to ensure that he does not have contraband before being placed in a cell. The police found two more small packages of drugs in his pockets.

[42] At 2:48 a.m., the Applicant was taken from his cell to a small phone room to speak to duty counsel. There is a small vertical window in the door to that room. Both Constables Keung and Barry testified that there was nothing in the room except for a telephone.

[43] At 2:54 a.m. the Applicant knocked on the door to indicate that the call was finished. Constable Keung testified that he looked into the window and saw the Applicant picking up a small bag of cannabis off the floor. He looked like he was going to put it in his pocket. Constable Keung entered the room and confiscated the bag.

[44] Constable Barry testified that when he and Constable Keung entered the room, the Applicant told them that he had found the small bag of cannabis on the floor of the phone room.

[45] Constables Keung and Barry reported this to the Staff Sergeant, who authorized a strip search of the Applicant.

[46] The Applicant was taken to an interview room next to the phone room, where Constable Keung conducted the search. The door was left slightly ajar, so that Constable Barry, who stood just outside, could see Constable Keung and intervene if there was any difficulty. The strip search lasted approximately 3 minutes. It was a visual search only, and the Applicant took off only one piece of clothing at a time. Nothing was located during the strip search.

[47] Constable Barry explained that although the door to the interview room was left ajar, no one was permitted in the hall during the strip search, and the room was not visible to any of the cells further down the hall. The only persons who could see the strip search were Constable Keung and Constable Barry, who was standing outside but would look inside “every now and then”.

Analysis

(i) Arrest of the Applicant

[48] The Applicant argues that his arrest by the police was an “overreaction” to a minor traffic violation. This overreaction was the result of unconscious racial bias.

[49] The Applicant argues that unconscious racial profiling can be inferred from the circumstances surrounding the arrest.

[50] The Applicant’s car was stopped as part of the RIDE program. The police acknowledge that, apart from the license plate coming back “missing” and the fact that a missing plate should not be on any motor vehicle, there was nothing unusual about the Toyota and no concern about the sobriety of the driver.

[51] The Applicant argues that the decision to arrest him was not made until after he stopped his car and the police saw that he was a black male. Most importantly, he argues that the police asked him to identify himself before they knew that the plate was missing, even though they do not generally ask drivers to identify themselves at a RIDE spot check unless they have sobriety or other HTA concerns.

[52] The Applicant relies primarily on the facts that constables Keung and Barry could not recall when they asked the Applicant to identify himself and could not recall whether they knew the plate was missing before or after his car rolled up to the RIDE spot check and Constable Keung began speaking to him. The Applicant asserts that if Constable Keung asked the Applicant to identify himself before he knew that the plate was missing, this is evidence that unconscious racial profiling was a factor in the decision to arrest the Applicant.

[53] Once the police discovered that the license plate was missing, rather than immediately arresting the Applicant, the Applicant argues that the police should have asked him to provide his ownership and driver’s license, as police are entitled to do at a road-side spot check: R. v. Hufsky, [1988] 1 S.C.R. 621, at p. 638. He argues that arresting him was an “overreaction” and an “unjustifiable intensification”.

Analysis – Racial Profiling

[54] The Supreme Court of Canada defined racial profiling in R. v. Le, 2019 SCC 34, at paras. 76 and 78:

[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment…

Thus, racial profiling is anchored to an internal mental process that is held by a person in authority — in this case, the police. This means that racial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion.

[55] In R. v. Dudhi, 2019 ONCA 665, at para. 55:

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous… The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

[56] The Court continued, at para. 63:

Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.

[57] And at para. 66:

In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.

[58] In R. v. Sitladeen, 2021 ONCA 303, at para. 43, the Court of Appeal reaffirmed that the test for racial profiling does not require the trial judge to find that a police officer lied about their motivation for a stop or arrest. Since the attitude that underlies racial profiling may be consciously or unconsciously held, “a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping”. The Court repeated its earlier statement from R. v. Brown (2003), 64 O.R. (3d) 161, that:

A racial profiling claim is rarely going to be proved by direct evidence. That would require an admission by the officer that racial stereotypes influenced the decision to stop the accused. Accordingly, if racial profiling is to be proven, it “must be done by inference drawn from circumstantial evidence”.

[59] The Court explained, at paras. 48-49:

[T]he focus of the correspondence test is not necessarily whether the circumstances demonstrate that the officer was lying, i.e., deliberately misleading the court, but rather, whether the circumstances give the court a basis to reject the officer's evidence as untrue because they are indicative of racial profiling.

This approach to the correspondence test is consistent with the concept of unconscious bias, where a person either does not recognize, or does not acknowledge his own bias. An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.

[60] The Court summarized its analysis, at para. 54:

To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.

[61] It is also important to note that the Court, at para. 67, rejected the suggestion that there was a presumption of racial profiling wherever a police officer becomes aware of the racial identity of a suspect before making a traffic stop. The onus of proof is on the accused when a Charter breach is alleged.

[62] In the present case, I find that the Applicant has not made out the factual basis that he relies on to support his assertion of circumstantial evidence of unconscious racial profiling.

[63] Constable Grewal’s evidence was that he made the decision to arrest the driver of the Toyota as soon as Constable McNamee informed him that the license plates were identified by the MTO database as missing. Based on his knowledge and experience as a police officer – that missing plates should never be on a motor vehicle, and that this is an indicium that the plates are stolen – he had both subjective and objective reasonable and probable grounds to arrest the driver of the Toyota for possession of stolen property: R. v. Gerson-Foster, 2019 ONCA 405, at paras. 77 – 79; R. v. Canary, 2018 ONCA 304, at paras. 21-23 and 30.

[64] Officer Grewal also had reasonable and probable grounds to arrest the Applicant for violating s. 12(1)(d) of the HTA.

[65] In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete”: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A., cited with approval: R. v. Beaver, 2022 SCC 54, at para. 72. In this regard, Constable Grewal testified that he had to act quickly at a RIDE stop because the car is on a highway off-ramp with vehicles backed up behind.

[66] There is no evidence that Constable Grewal could see that the driver of the Toyota was a black male. Indeed, he was never asked this question by the Applicant’s counsel. PC Grewal was clear that he received the information about the missing plate while constables Keung and Barry were still talking to the driver of the car in front, and he made the call to arrest the Applicant while the Toyota was still approaching constables Keung and Barry. This happened just before constable Keung and Barry spoke to the occupant of the Toyota.

[67] Constable Grewal’s recollection of the chronology is supported by the fact that he also told Constable McNamee to position his car in front of the white Toyota so it could not escape, and the evidence is that Constable McNamee followed this direction immediately. There was no suggestion that Constable McNamee received this direction from either Constables Keung or Barry.

[68] Accordingly, I conclude that, contrary to the Applicant’s assertion, the decision to arrest the Applicant was made by Constable Grewal before the Applicant stopped his car and before the police saw that he was a black male, and that the police did not ask the Applicant to identify himself before they knew that the license plate was missing.

[69] On this basis, the circumstantial evidence relied on by the Applicant to support his theory of unconscious racial profiling is not made out, and the Applicant has failed to prove that unconscious bias and racial profiling were factors in the decision to arrest him.

Charter s. 8

[70] The Applicant argues that the police exceeded their authority to search his car incident to his arrest. He argues that the police could not search his car for identification documents, that the search of his vehicle should have stopped once the police found the automobile ownership in the glove compartment, and that they had no authority to search the trunk of the car prior to the drugs being found.

[71] A search incident to arrest rests on three components: (a) the arrest is lawful; (b) the search is truly incidental to the arrest, in the sense that it is connected to the arrest, either as a means by which to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) the search is conducted reasonably R. v. Saeed, 2016 SCC 24, at para. 37; Canary, at para. 33.

[72] In my view, the search of the Toyota incident to arrest met all three required components.

[73] The search of the vehicle for identification information was incidental to the arrest for possession of stolen license plates. The police did not have to stop searching when they found the vehicle ownership information in the name of GP Water Heater Trust. This was only one piece of the puzzle. They still had no identification documents for the Applicant, who did not have a driver’s license, and had initially given the police a false name. It was reasonable to search the backpack in the back seat of the car for identification documents. Once the police found the drugs in the backpack, it was also reasonable for them to extend the search to the trunk of the car.

[74] In my view, the search for identification information was directly related to the arrest for a stolen license plate.

[75] In any event, I adopt the following statement of Dambrot J. in R. v. Nunnery, at para. 26:

I have no doubt that a search for identification where the person under arrest does not identify himself or herself, or even to confirm an identification that has been given, is related to the objectives of the proper administration of justice, and amounts to a valid objective for a search incident to arrest, whether or not it is properly classified as a search for evidence.

[76] I recognize that the Ontario Court of Appeal has recently declined to decide this issue: R. v. Sureskumar, 2023 ONCA 705, at paras. 13 and 14. Regardless, in this case, where the applicant is arrested at a roadside spot check and has no identification documents on his person, and initially gives the police a false name, the police search for identification documents in his car is both reasonable and necessary.

[77] There is a dispute as to when the search of the trunk began. The Applicant argues that the search began as soon as the trunk was opened (which was before the discovery of the drugs), the Crown argues that the search did not begin until the police looked in the trunk, which did not occur until after the drugs were discovered.

[78] In my view, the search of the trunk did not begin until the police actually went to the rear of the Toyota and began to look inside the trunk. The act of opening the trunk from the front seat latch or button did not constitute a search.

[79] Once the drugs were found in the backpack the Applicant was re-arrested for possession of a controlled substance. At that point, the search of the trunk was within the scope of the search incident to the arrest.

[80] Accordingly, I conclude that the searches conducted were truly incidental to arrest and conducted reasonably. It follows, therefore, that a lawful search took place, incident to the lawful arrest.

Strip Search

[81] The Applicant also challenges the strip search conducted at the police station. He argues that the police did not have reasonable and probable grounds to conduct the strip search and that the strip search was conducted in a manner that violated the Charter.

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

(1) Conducted as incident to a lawful arrest;

(2) Conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

(3) Based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest;

(4) Conducted in a reasonable manner.

R. v. Golden, 2001 SCC 83, at para. 99; R. v. Muller, 2014 ONCA 780, at para. 60.

[83] The principles relating to strip searches were summarized by Campbell J. in R. v. St. Clair, 2018 ONSC 5173, at para. 74 (citations omitted):

The power to search a person incident to his or her arrest does not automatically entitle the police to routinely conduct an invasive “strip search” of the arrestee in every case. Rather, such intrusive personal searches can only be justified as reasonable where certain preconditions are met. First, the arrest of the accused must be lawful. Second, the strip search must be truly incidental to the arrest, in that it must be undertaken in order to collect or preserve evidence of the alleged offence for which the accused has been arrested, or to search for potential weapons in order to ensure the safety of the police, the arrestee and/or other members of the public. Such a search cannot be carried out abusively, or for the purpose of humiliating or punishing the arrestee. Of course, where an arrestee is going to be entering the jail or prison population, there is a greater need to ensure that the arrestee is not concealing weapons or illegal drugs on his or her person prior to his or her entry into that prison environment. Third, as a strip search is a much more intrusive type of personal search, a higher degree of justification is required. In order to meet the constitutional standard of reasonableness necessary to justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the case.

[84] See also Muller, at paras. 54 – 59.

[85] In this case, the police found the Applicant with a small bag of cannabis in the phone room. The police did not find that bag when they searched the Applicant at the police station. They believed that the cannabis was not in the room when the Applicant was brought in to speak to duty counsel. It was reasonable for the police to conclude that the cannabis was hidden on the Applicant’s person. In my view, this circumstance justified a strip search before the Applicant was returned to his cell.

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

1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

[87] This case raises factors 7 and 11.

[88] The Applicant argues that the strip search was not carried out in a private area because the door was left ajar so that Constable Barry could observe. He argues that anyone walking down the hall might have been able to see inside the room.

[89] This argument ignores Constable Barry’s evidence that although the door to the interview room was left ajar, no one was permitted in the hall during the strip search, and the room was not visible to any of the cells further down the hall. The only persons who could see the strip search were Constable Keung, and Constable Barry, who was standing outside but would look inside “every now and then”. This complies with the requirements of the 7th factor in Golden.

[90] The Applicant also argues that although Constable Keung made a record of the strip search, he did not note the items of clothes that the Applicant was wearing, and which were removed. The Crown (and Constable Keung) acknowledges that a better record could have been kept, but argues that the record kept was sufficient to comply with factor 11 in Golden.

[91] The Supreme Court in Golden does not indicate what constitutes “a proper record”. In my view, the record of the strip search in this case was adequate to comply with factor 11 in Golden. In this regard I adopt the conclusion of Nakatsuru J. in R. v. Hassan, 2023 ONSC 1300, at para. 62:

The adequacy of the record required for a strip search will depend on the context of the strip search. Greater notation of the reasons for, and how, a strip search is conducted is necessary for a strip search done in the field than for a strip search in a police station under the supervision of the officer-in-charge of the station during a booking process that is supposed to be video recorded. As such, the record in this case is sufficient.

[92] Moreover, the analysis of the Golden factors must be contextual, and a minor deviation from those guidelines does not necessarily result in a violation of s. 8 of the Charter: R. v. Lee, 2018 ONCA 1067, at para. 15.

[93] In my view, the manner in which the strip search was conducted met the requirements of Charter s. 8.

[94] Accordingly, the strip search of the Applicant did not infringe Charter s. 8.

Conclusion

[95] I have concluded that the arrest of the Applicant was lawful, and the subsequent search incident to his arrest and the strip search later at the police station were both lawfully conducted. There has been no breach of the Applicant’s rights under Charter ss. 8 or 9. Accordingly, the application to exclude evidence is dismissed.

Justice R.E. Charney Released: January 26, 2024