Court File and Appearances

Court File No.: CR-23-10000043-00AP
Date: 2025-03-18
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Mykayla Dias

Appearances:
G. Brienza, for the Crown
A. Zaitsev, for Ms. Dias

Heard: 23 October 2024

Judge: S.A.Q. Akhtar

Overview

[1] On appeal from the stay entered on 13 October 2023 by Justice Fern Weinper of the Ontario Court of Justice.

Factual Background and Overview

Introduction

[2] The respondent, Mykayla Dias, was charged with two Criminal Code, R.S.C., 1985, c. C-46 offences: operating a vehicle while impaired contrary to s. 320.14(1)(a) (Impaired Driving) and operating a vehicle with over 80mg of alcohol contrary to s. 320(1)(b) (Over 80). At trial, the Crown conceded the respondent’s ss. 8, 9, 10(a), and 10(b) Charter rights had been violated. The judge found that the results of the Approved Screening Device (ASD) and subsequent observations of indicia of impairment should be excluded from evidence pursuant to s. 24(2) of the Charter. However, the judge also found that there was sufficient independent evidence to find the respondent guilty of impaired driving.

[3] The matter did not conclude there. The judge made a further finding: the respondent’s ss. 7, 8, and 12 Charter rights had been breached because the arresting officer, a male, conducted a pat down search using the back of his hands and briefly touched under Ms. Dias’ breast area. As a result of the cumulative breaches and this particular breach, the trial judge stayed the charges.

[4] The Crown appeals against the stay of proceedings.

Background Facts

[5] On 24 April 2022, at approximately 3:48 a.m., the respondent became involved in a traffic collision. She drove her Honda Accord through a red light and hit a grey Mazda.

[6] Two officers, Lall and Febbo, attended the scene. Lall, a relatively inexperienced officer who had not previously been involved with an impaired driving case, dealt with the respondent as she sat in her car. He smelt an odour of alcohol emanating from her breath and called for another officer to attend the scene with an ASD. However, he did not make a demand for breath or explain to the respondent that she might be facing criminal charges for driving whilst impaired.

[7] When the ASD arrived, the respondent registered a fail after providing a sample. She was arrested for Impaired Driving and Over 80. She was read her right to counsel and cautioned.

[8] Before placing the respondent into the scout car, Officer Febbo conducted a pat down search for safety purposes. He asked the respondent if she was wearing a bra and when she confirmed that she was, Febbo used the back of his palms to touch an area just below the respondent’s breasts. The respondent was then placed in the police car.

[9] As described, the Crown conceded that the respondent’s ss. 8, 9, 10(a), and 10(b) rights had been violated. In the result, the trial judge excluded the results of the breath tests—which yielded samples of 140 mg and 131 mg of alcohol per 100 ml of blood—under s. 24(2) of the Charter.

[10] However, the trial judge found that the Crown had proven the offence of Impaired Driving beyond a reasonable doubt based on the visible signs of impairment observed by the officers.

[11] Notwithstanding this finding, the judge found that the pat down search constituted a breach of the respondent’s ss. 7, 8, and 12 Charter rights. As a result, she stayed the charges.

[12] The judge found that there was no need for Febbo to touch the respondent’s breast area as part of the pat down search because she had been polite and co-operative. The judge added there was no indication that the respondent possessed any weapons or drugs. The judge also found that it was relevant that the respondent did not have a criminal record or any outstanding charges.

[13] The judge concluded:

In the instant case, Ms. Dias did not testify on the voir dire or on the trial. However, I do not need her testimony: I saw the video from the body-worn camera. I heard Officer Febbo ask Ms. Dias if she was wearing a bra. She responded affirmatively. Then, as the video shows, the officer touched Ms. Dias’ breasts in the course of the search at the side of the road. In the circumstances of this case, touching Ms. Dias’ breasts was humiliating, degrading and offensive. The courts must distance themselves from the actions of the officer.

I find that touching Ms. Dias’ breasts was unnecessary and unreasonable. It constituted a violation of her s.7 Charter right to life, liberty and security of the person. Further, I find that the search constituted an unlawful search pursuant to s.8 of the Charter. Finally, I find that touching Ms. Dias’ breasts violated her rights under s.12 of the Charter, in that Ms. Dias was subjected to cruel and unusual treatment.

Analysis

[14] As noted, the Crown at trial conceded the ss. 8, 9, and 10 Charter breaches. It does not seek to reargue the issue on this appeal. Instead, Mr. Brienza, on behalf of the Crown, submits that the judge erred in finding Charter breaches relating to the pat down search and in staying the case.

[15] There is no doubt that the police have a power to conduct a pat down search during an investigative detention for safety purposes: R. v. Mann, 2004 SCC 52, para 39. Here, the applicant had been arrested so the search conducted here was more akin to a search incident to arrest. In R. v. Morrison (1987), 35 C.C.C. (3d) 437, at p. 442 (Ont. C.A.), the court explained:

As incident to a lawful arrest, a peace officer has the right to search the person arrested and take from his person any property which he reasonably believes is connected with the offence charged, or may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested, but he need not have reasonable grounds to believe that either such weapons or evidence will be found. It is the fact that the search is made as incident to a lawful arrest which gives the peace officer the authority to search the person arrested.

[16] See also: R. v. Coulter, [2000] O.J. No. 3452, para 20.

[17] The officers were in the process of placing the respondent in their vehicle for transportation to the police station. Officer Febbo testified that he used the back of his hand to eliminate “the idea of groping or any kind of a grip to a woman’s breasts and it is the least invasive way to do it.” He also observed that it was important to search this area because females often hide weapons and drugs in their bra—something he had experienced on previous occasions. He also checked to make sure she was wearing a bra because if she was not, he would not have proceeded with the search.

[18] The judge determined, at para. 71:

[T]he video of the pat down search reveals that the touching of Ms. Dias’ breasts was invasive and humiliating. Touching her in this manner, in the circumstances of this case, was completely unnecessary: she was cooperative with the police and there was no evidence that drugs, alcohol or weapons might have been secreted in her bra. She was not told that she could have a female officer conduct the search. It was not suggested to her, after giving her rights to counsel, that she could wait in her vehicle or at the side of the road with her blanket until a female officer arrived. Touching the breasts of a detained woman in Ms. Dias’ circumstances is something that cannot be condoned by the court.

[19] After reaching this conclusion, the judge found that there was no alternative lesser remedy and ordered a stay. According to the judge, there is no alternative lesser remedy that will appropriately and sufficiently dissociate the justice system from the myriad instances of state misconduct in this case, i.e., “the cumulative breaches”.

[20] It is clear from the judge’s reasons that the tipping point in favour of the stay was the pat down search which capped the series of Charter breaches.

[21] When examining this issue, context is important. This was a cold night and the police were seeking to get the respondent into their car, a warmer location, as quickly as possible. There was evidence that the police vehicle was causing a blockage of traffic to ensure a safe investigation. There was no female officer present to conduct the pat down search. It is of some note that the respondent did not testify on the voir dire. The video shows that she did not complain at any stage about the search and asked the officer to conduct it as quickly as possible so that she could get in the car quickly. Nor was there any complaint from the respondent after the search.

[22] I am not surprised by the lack of complaint. I have watched the video of the body worn camera several times. The police acted completely professionally when escorting the respondent to her car. The pat down search was cursory and respectful. Any touching of the chest area was right at the bottom of the breast area and was fleeting. From my vantage point this was not conduct that was “humiliating, degrading and offensive” as described by the trial judge. This was hardly the type of conduct that the court could describe as disassociating itself from.

[23] I also part company with the judge’s suggestion that there was an obligation on the part of the police to call a different police station to send out a female officer. This action would be both impractical and remove resources from a station for the simple purpose of placing a female accused in a car. The judge’s opinion that it might have taken a “few minutes” is highly speculative and unrealistic.

[24] Requiring a female officer to attend the arrest of every female accused in case a brief pat-down search is necessary would require significant resources; the allocation of resources of this scale is a decision properly left to parliament and its delegates.

[25] The suggested obligation appears to import jurisprudential guidance on how to reasonably implement a strip search or penile swab: R. v. Golden, 2001 SCC 83, para 101; R. v. Saeed, 2016 SCC 24, para 78. This guidance cannot be readily transposed into the context of search incident to arrest because “different types of searches raise different constitutional considerations: the more intrusive the search, the greater the degree of justification and constitutional protection that is appropriate”: Golden, at para. 88. The Court in Golden explained that strip searches represent one of the most extreme exercises of police power and involve a significant and direct interference with personal privacy: at para. 89. By contrast, courts have long recognized that "pat-down" or frisk searches—which occur fully clothed, involve no physical force, and last a few seconds—tend to fall on the less intrusive end of the spectrum: Golden, at paras. 47, 89; Cloutier v. Langlois, [1990] 1 S.C.R. 158, p. 185. Turning the Supreme Court’s guidance on the manner of conducting strip searches and penile swabs into a requirement for searches incident to arrest fails to strike an appropriate balance under s. 8.

[26] The facts of this case illustrate how a contextual analysis of the manner of the search can account for any minor variations in privacy interests. Before the officer began, he made an inquiry that may have obviated the need for a search, and when in his view it did not, he employed a less intrusive search technique.

[27] Whilst it would have been preferable for a female officer to have conducted the search, in the circumstances of this case it was not unreasonable for Febbo to have proceeded with the search. Even though the judge held that there was no reason to expedite the respondent’s entry into the car, the video shows that it is the respondent who is urging the police to complete their search so she can get into the car and out of the cold.

[28] Nor do I criticise the police for being concerned about the potential for violence when they place a suspect or arrestee in their car. They cannot know what items or weapons a particular detainee might possess.

[29] I find that the judge erred in finding that there was a s.7 or s.12 Charter breach in this case. There was no cruel and unusual treatment or punishment in these circumstances.

[30] The key in this case is the reason why a pat down search around the breast area was done in the first place. The judge found that there was no indication that the respondent had any weapons or drugs on her person or that might be concealed in the bra area. She also had no criminal record or outstanding charges. With respect to the trial judge these facts are of no consequence. Whilst I defer to the judge in terms of context, I would add that police officers who place detainees in their car in the early hours of the morning are entitled to ensure that they do not have weapons on their person. The fact that they might be charged with simple impaired offences or have no criminal record does not reduce the risk of a particular detainee carrying a weapon that might be used to inflict harm. Police officers are entitled to take reasonable steps to protect their personal safety in a reasonable manner. R. v. Mann, 2004 SCC 52, para 37, citing Golden, at para. 95.

[31] In my view, there was no Charter breach by the fact that the police conducted a brief “pat down” safety search of the accused. This was a brief and unobtrusive search that the police were entitled to conduct in all the circumstances of this case, for their own protection and safety, and it resulted in no violation of the Charter rights of the accused under ss. 7, 8 or 12 of the Charter of Rights.

[32] A stay must be ordered only in the clearest of cases. Standing alone, this breach of the Charter could not possibly justify a stay. Indeed, I have concluded that it was not even conducted in violation of the Charter. Accordingly, it needs no Charter remedy—and certainly not a remedy as drastic as a stay of proceedings. I appreciate that the trial judge concluded there were other violations of the Charter but this alleged violation was clearly, in her view, the most serious, and she relied upon it heavily in staying the proceedings against the accused.

[33] In my view, the stay of proceedings by the trial judge cannot stand. It was erroneously imposed. Accordingly, the Crown appeal is allowed, the stay of proceedings is set aside, and the matter is remitted to the trial judge, to sentence the accused in relation to the offence of impaired driving, for which the trial judge found the accused guilty.

[34] Even though I have reached this conclusion, I note the time that has elapsed since the offences and the original trial date. I would strongly urge the Crown to reconsider whether any further proceedings should take place and whether it feels that it could, using its discretion, stay the proceedings. That is a decision for the Crown to take.

S.A.Q. Akhtar

Released: 18 March 2025