Ontario Superior Court of Justice

Court File No.: YC-24-10000012-0000
YC-24-10000011-0000
Date: 2025-05-15
Heard at Toronto: January 13-17, 20-23, 28, 30-31, 2025

Between:
His Majesty the King
– and –
SC, CU, TGV, and AW, Defendants

Appearances:
M. Humphrey, S. De Filippis, and M. Guirguis for the Crown
B. Bytensky and K. Doyle for SC
A. Alawi for CU
D. Bygrave for TGV
C. Morris for AW

Judge: P. Campbell

Reasons for Ruling

(Application for Stay of Proceedings; Canadian Charter of Rights and Freedoms, s. 24(1))

A. Background and Evidence

(i) History

[1] On December 18, 2022, shortly after midnight, eight girls in their early to mid-teens set upon Kenneth Lee. Mr. Lee was with his friend, Erika Tong, in a small “parkette” in a busy area of downtown Toronto. The parkette is adjacent to a prominent hotel and across the street from Union Station, a major railway hub. Mr. Lee suffered many blunt force injuries in the assault, leaving him bloodied and bruised. His death, however, resulted directly from a stab wound to the heart which caused fatal blood loss.

[2] Mr. Lee was at the time a homeless man, sometimes residing in shelters. He had no criminal record and no apparent history of addiction or antisocial behaviour. It is not suggested that he provoked the attack or did anything else to trigger it. His first engagement with the accused girls appears to have been in response to their aggression toward his companion, Ms. Tong, from whom one of the girls took a bottle containing alcohol, without making a request or receiving permission.

[3] The youth of the accused, the brazenness of the attack, the vulnerability of Mr. Lee, and the collective nature of the group violence combine to make this a case of unusual gravity and acknowledged public concern. SC, CU, and AW faced charges of second degree murder. TGV was charged with manslaughter.

[4] Four of the eight accused youth concluded the proceedings against them with pleas of guilty in the Ontario Court of Justice, where the preliminary inquiry for all eight girls was held. The other four, SC, CU, TGV and AW, elected trial in this court and two of them, SC and CU, re-elected to be tried by me, sitting as a judge alone. I have been appointed as the case management judge for all four cases under s. 551.1 of the Criminal Code, R.S.C., 1985, c. C-46, and heard the present application for a stay of proceedings in the “related trials” under s. 551.7. The application was heard by me immediately in advance of the trial of the two accused who had re-elected – a trial which would not have proceeded if the stay of proceedings they sought was granted.

[5] On January 31, 2025, in a brief oral ruling, I held that the proceedings against all four applicants would not be stayed. I made this ruling along with a finding that the accused girls’ constitutional rights had been violated through the strip searches they were subjected to throughout their time in pre-trial custody. As a result of this ruling, the cases against SC and CU proceeded directly to trial on the merits before me.

[6] At the date of this ruling, SC remains on trial for second degree murder with my judgment on the merits of that charge on reserve. CU entered a plea of guilty to the included offence of manslaughter on February 18, 2025, following the Crown’s acknowledgment, after the evidentiary portion of the trial, that it could not prove her guilt on the charge of murder. The trial of TGV and AW was set to commence on May 5, 2025, but both accused entered pleas of guilty to included offences before that date, TGV to assault and AW to manslaughter. TGV has been sentenced to a period of probation. Sentencing is pending for CU and AW.

(ii) The Constitutional Claims

[7] It is common ground that all four applicants were subjected to what are known as “routine” strip searches while held in pre-trial custody in youth detention facilities after their arrests early on December 18, 2022. This resulted in custodial staff at the detention centres seeing their completely unclothed bodies for several seconds on several separate occasions. In the terminology employed by the detention facilities, a “routine” strip search is one that may be conducted without any specific grounds for the search related to the conduct of the detainee or an articulable suspicion that they might possess weapons, drugs, or other forms of contraband. These routine searches took place on initial admission to a facility; upon return from court appearances; following family visits; and following possible access to potentially dangerous implements, such as kitchen utensils. [1]

[8] An explicit ministerial standard from the Ministry of Children, Community and Social Services (MCCSS), to which each of the three detention facilities in the case was required to adhere, prohibited “complete” nudity in the course of strip searches and the Crown has conceded that, in this respect, the searches were conducted in an unreasonable manner and violated s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This, the Crown agrees, may merit some remedy for the applicants, but not the stays of proceedings requested.

[9] The applicants argue that the breach of rights was much broader in its factual and legal scope. Most significantly, they argue that the pervasive practice of routine strip-searching, on no specific grounds, was a serious and repeated violation of s. 8. They argue that s. 12 of the Charter is engaged as well on the basis that the searches were “cruel and unusual treatment”. They argue s. 7 is engaged on the basis that the searches were deprivations of bodily integrity without adherence to the principles of fundamental justice, and were inadequately supervised by ministerial authorities. Finally, they argue that s. 15 was violated, on the basis that the searches had differential impacts on the applicants – who are all Black adolescent females – based on their race, sex, and ages.

[10] Because the Crown accepts that the strip searches violated the rights of the accused girls, the issue of remedy is central to each party’s submissions. The applicants contend that the searches were a continuing systemic violation of their rights, known to senior officials in the MCCSS, with significant personal consequences for each of them. They argue that the only appropriate and just remedy is a stay of the proceedings. Continuing the cases, they say, would lead to the manifestation, perpetuation, and aggravation of the constitutional wrongs, under the authorities comprehensively summarized in R. v. Babos, 2014 SCC 16.

[11] The Crown argues that, under the Babos analysis, a stay of proceedings is not appropriate. It would, in view of the nature and gravity of the charges, produce much more societal harm than remedial benefit. According to the Crown, insofar as rights were violated and a remedy is called for, it can properly take the form of a reduction in the sentences the applicants would otherwise receive – a recognized constitutional remedy and a routine consideration in many sentencings without a constitutional dimension: R. v. Nasogaluak, 2010 SCC 6; R. v. Duncan, 2016 ONCA 754.

[12] The issue of routine strip searches was addressed by Justice Rose of the Ontario Court of Justice in earlier proceedings arising from the events leading to Kenneth Lee’s death. The routine strip searches were considered in determining the sentences of two young persons, AB and MJ, who entered guilty pleas before Justice Rose. They were also considered in an application for stays of proceedings by two other accused girls, JF and SS, in a ruling released on January 28, 2025, which was the subject of submissions before me on the present application. In R. v. J.F., 2025 ONCJ 54, Justice Rose held that the strip searches of these two girls breached their rights under s. 8 of the Charter, but that this breach could be remedied by sentence adjustments rather than through a stay. In that case, the stay was requested following guilty pleas by both applicants to included offences – manslaughter, in the case of JF, and assault with a weapon and assault causing bodily harm, in the case of SS.

[The remainder of the decision continues with detailed factual findings, legal analysis, and remedy, as set out in the original document.]

[1] Though the facility policies for “routine” strip searches also address searches conducted after a detainee’s return from locations where they might have had access to potentially dangerous implements, such as knives in a kitchen, these searches may only be conducted after specific procedural and substantive criteria have been met. In these reasons, this form of “routine” search is generally outside my consideration.

[2] For example, by reference to scholarship related to the sexual exploitation of young females, or to the oppressive treatment of the “black body” through history (such as Ta-Nehisi Coates’s Between the World and Me) or in the emerging literature on “misogynoir” and its consequences.

[3] The issue is effectively moot now with seven of the eight accused having pleaded guilty and the eighth, SC, having acknowledged her guilt for at least the offence of manslaughter.