CITATION: R. v. Saini, 2026 ONSC 2996

COURT FILE NO.: CR-24-6385

DATE: 20260522

Delivered orally and in writing

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Harinder Singh Saini

Applicant

Stephane G. Marinier, for the Crown

Rafik Kodsy, for the Applicant

HEARD: January 12, 13, 14, 15, 16, 19; March 6, 27, 30; April 13, 29; and May 1, 2026

Ruling on S. 7, 8, 10, AND 24 CHARTER application

bezaire j.

OVERVIEW

1The applicant, Harinder Singh Saini, is charged with importing cocaine, possession for the purpose of trafficking cocaine, possession of property obtained by crime over $5,000 x 2 and fail to report to officer, contrary to s. 74 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c.17 (“PCMLTF Act”).

2A trial by jury is scheduled to commence on June 1, 2026.

3The Crown seeks a ruling that statements made by Mr. Saini to the Border Security Officers (BSOs) were voluntary. The Crown also seeks a ruling that videotaped statements made to the Royal Canadian Mounted Police (“RCMP”) during a police interview post-arrest are voluntary (for cross-examination purposes only).

[4] The defence concedes that the statements are voluntary but brings this application seeking a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms as a result of ten alleged violations of Mr. Saini’s ss. 7, 8, 10(a) and 10(b) Charter rights, which the defence submit occurred while Mr. Saini was in the secondary examination area at the Ambassador Bridge and post-arrest. The defence concedes there were no Charter violations at the primary inspection booth.

5Much of the evidence is not in dispute. At approximately 12:05 a.m. on October 29, 2023, Mr. Saini, a commercial truck driver, attempted to return to Canada from the United States through the Ambassador Bridge. He presented himself at the primary inspection booth where it was determined that his name was flagged as the subject of a lookout for tobacco smuggling. He denied having any currency equal to or greater than $10,000 and was referred to the commercial secondary examination area for examination.

6A lookout is a warning that the traveller may be in possession of contraband. All persons subject to a lookout are referred to secondary inspection and their vehicles are searched. The procedure at the Ambassador Bridge was for the cab to be searched onsite and the trailer to be searched at an offsite location.

7During the secondary examination, five stacks of Canadian $20 bills, held together by elastic bands, were found in the cab of Mr. Saini’s truck. The bundled money totalled $10,000. Approximately $10 in United States currency and loose change was also found.

8Mr. Saini was questioned about the money at around 12:45 a.m. He acknowledged the bundled money totalled $10,000 and indicated he thought he was permitted to have it. He also provided an explanation for the money, including that his fleet cards were not working.

[9] Mr. Saini alleges his s. 7 Charter right against self-incrimination was violated when he was questioned about the money. Once the currency was found, the officers had the requisite grounds to detain him. The Crown disputes the violation and submits that the examination remained routine until the count of the currency confirmed it totalled $10,000.

10Mr. Saini was not informed of the reasons for his detention or read his right to counsel until 1:25 a.m., first because the process was taking too long, and then at 1:39 a.m. after the count was completed, for possession of proceeds of crime. He requested to speak to counsel and a supervisor.

11Thereafter, Mr. Saini was patted down and taken into custody, where he was strip searched. He was not afforded opportunity to speak to counsel before the strip search. He later provided a video statement to RCMP Officer Christopher Barr.

[12] Mr. Saini alleges a violation of his s. 8 Charter rights on the basis that he was strip searched without reasonable and probable grounds and that the search was conducted in an unreasonable manner. The Crown recognized the weaknesses in its case but submits that based on the totality of the evidence, there was no violation.

[13] Mr. Saini also alleges a s. 10(a) violation and several violations of his s. 10(b) Charter rights, including violations for failing to immediately inform him of his right to counsel upon detention, delaying his right to counsel, failing to hold off questioning and to hold off the strip search until he exercised his right to counsel, and failing to facilitate counsel of choice. Some of the violations are conceded by the Crown.

14As a remedy, Mr. Saini seeks a stay of proceedings under s. 24(1) of the Charter. He submits that the integrity of the justice system will be prejudiced if the trial is permitted to proceed. The violations are so egregious that the only recourse is to stay the proceeding. The officers’ impugned conduct demonstrates that they either did not care about the Charter or were not properly informed. Either way, Mr. Saini submits that a message needs to be sent that Charter violations such as these will not be tolerated.

15The Crown submits that this is not one of the clearest of cases where a stay is appropriate. The charges before the court relate to the serious offence of drug importation, which may carry a life sentence. 120.348 kilograms of cocaine, with a street value of $10.8 to $13.2 million, was seized from Mr. Saini’s trailer. It is not in the interests of justice to stay the charges in circumstances where the violations are largely confined to the six-to-seven-hour period before the cocaine was found. The Crown submits that there are lesser remedies available, such as excluding Mr. Saini’s verbal statements regarding the money and if convicted, reducing his sentence.

[16] For the following reasons, I find that Mr. Saini’s ss. 7, 8, 10(a), and 10(b) Charter rights were violated. I agree with the defence that cumulatively, the violations are egregious. They are also the result of a systemic problem such that I find that the only remedy capable of redressing the harm is a stay of proceedings. This is not a case where the law was unclear. The harm to the system in allowing the trial to proceed far outweighs the seriousness of the offences, and therefore this is one of those clearest of cases where a stay of proceedings is warranted.

THE EVIDENCE

17I will begin by addressing the evidence, which was provided by BSO Cynthia Rivard, Superintendent Mark Skovran, BSO Blade Donaldson, BSO Derek Cummings, and Officer Barr. Mr. Saini did not testify.

Primary Inspection

18BSO Rivard was working in primary inspection booth #10 at the Ambassador Bridge on October 29, 2023. Mr. Saini presented himself at her booth at approximately 12:05 a.m. The scan of his passport revealed a lookout 100 percent matching his name for tobacco smuggling.

19BSO Rivard closed her window and informed Superintendent Skovran that she intercepted the subject of a lookout. She then opened her window and asked Mr. Saini several questions, including whether he had any currency greater than or equal to $10,000. Mr. Saini said no. He was then referred to the commercial secondary examination area for examination. He was not advised that he was the subject of a lookout.

Secondary Examination

20Superintendent Skovran has been employed at the border since May 2001. He held the position of Superintendent since March 2023 and for the previous eight months, he was the Acting Superintendent. He works the midnight shift and is one of four superintendents at the Ambassador Bridge.

21Superintendent Skovran assigned the lookout to BSO Donaldson and BSO Cummings and provided them with a printout of the synopsis of the lookout. They were tasked with examining the cab of Mr. Saini’s truck.

22BSO Cummings has been employed at the border since 2004, and BSO Donaldson has been employed since 2020. BSO Cummings served as Acting Superintendent for less than six months at some point prior to the events in question. They both had experience with lookouts.

23At approximately 12:15 a.m., BSO Donaldson and BSO Cummings commenced their examination of the cab. Mr. Saini waited in the kiosk area. Neither BSO Donaldson nor BSO Cummings spoke with Mr. Saini prior to their examination.

24Within approximately ten minutes, BSO Donaldson located five stacks of cash held together by elastic bands, all in $20 denominations. BSO Donaldson’s evidence was that he thought it was $10,000. BSO Cummings’ evidence was that he thought it was $5,000. The officers also noticed two cellphones on the passenger side. One was playing music, and the other was receiving messages from various applications.

25At approximately 12:28 a.m., BSO Cummings informed Superintendent Skovran that they found a large amount of Canadian currency. Superintendent Skovran’s evidence is that, upon being informed of the money, he suggested the officers detain Mr. Saini. They did not do so.

26At approximately 12:45 a.m., BSO Donaldson and BSO Cummings entered the kiosk area. BSO Cummings evidence was that when he walked into the kiosk, Mr. Saini made “two spontaneous utterances” about the money. He did not ask Mr. Saini questions, and he did not wave the money around.

27In contrast, BSO Donaldson’s evidence was that upon opening the door to the kiosk, BSO Cummings held up the money and displayed it to Mr. Saini. He then asked Mr. Saini about the money. The CCTV evidence confirms BSO Donaldson’s evidence. Upon entering the kiosk, BSO Cummings can be seen gesturing with the money and immediately moving his mouth as if he was speaking.

28Mr. Saini advised that the bundle of money totalled $10,000 and that he thought he could have $10,000 without declaring it. He claimed his fleet cards were not working, and he needed cash to pay for gas.

29Thereafter, the officers located $10 USD and some loose change, as well as credit card receipts for gas purchased in the United States and in Canada.

30At approximately 1:05 a.m., BSO Cummings began counting the money.

31At approximately 1:25 a.m., B.S.O. Donaldson read a detention statement to Mr. Saini, including his right to counsel and secondary caution. BSO Donaldson’s evidence is that Superintendent Skovran instructed him to detain Mr. Saini because “the customs process was taking too long.” In contrast, BSO Cummings’ evidence is that he told BSO Donaldson to detain Mr. Saini because of the delayed process. Mr. Saini advised that he understood his rights and asked to speak to a lawyer. BSO Donaldson then went to the office area to work on his notes.

32At approximately 1:29 a.m., BSO Cummings completed his count of the bundled money, confirming it totalled $10,000.

33At approximately 1:39 a.m., BSO Donaldson detained Mr. Saini for possession of proceeds of crime. Mr. Saini again confirmed he understood. He asked to speak to a lawyer, as well as a senior officer.

34At approximately 1:40 a.m., BSO Cummings read the secondary caution to Mr. Saini. He then proceeded to ask Mr. Saini questions about the money.

35At approximately 1:45 a.m., BSO Donaldson patted down Mr. Saini. The pat down lasted one minute and ten seconds per the CCTV evidence. It was negative. Mr. Saini was handcuffed and taken to the main cell area.

36At approximately 1:55 a.m., BSO Donaldson left a message for duty counsel to facilitate Mr. Saini’s right to counsel. At or around the same time, BSO Cummings proceeded to ask Mr. Saini questions about his previous statements regarding his fleet cards. Mr. Saini did not answer his questions directly.

37At approximately 2:03 a.m., BSO Donaldson and BSO Cummings commenced the strip search. It was concluded at approximately 2:07 a.m. The search did not produce any evidence. This was the first strip search BSO Donaldson conducted at customs, although he had previously conducted many strip searches when he worked as a correctional officer. While at customs, BSO Cummings had previously been involved in approximately 15 to 25 strip searches.

38At 2:18 a.m., Superintendent Skovran spoke to Mr. Saini. His conversation with Mr. Saini was limited to him answering Mr. Saini’s questions regarding why he was detained and how long the process would take. Mr. Saini also asked him to turn on the refrigeration on his truck so that the load did not spoil.

39At approximately 2:30 a.m., duty counsel returned the call placed at 1:55 a.m. and Mr. Saini spoke with counsel in private. This is the first time Mr. Saini spoke to a lawyer after having requested to speak to one at 1:25 a.m. Mr. Saini acknowledged that he was satisfied with the call. Thereafter, Mr. Saini was placed in a cell and monitored.

40At approximately 4:13 a.m., the towing company arrived, and Mr. Saini’s trailer was towed to the offsite location for examination. By 9:13 a.m., bags containing the cocaine were found in the trailer of Mr. Saini’s truck. BSO Donaldson placed Mr. Saini under arrest for smuggling. Mr. Saini advised that he understood and asked to speak to a lawyer.

41At approximately 9:18 a.m., BSO Donaldson contacted duty counsel for Mr. Saini. The lawyer answered the call and spoke with Mr. Saini in private between 9:25 a.m. and 9:39 a.m.

42At approximately 9:39 a.m., BSO Donaldson re-arrested Mr. Saini for possession of proceeds of crime. Mr. Saini indicated that he understood and did not request to speak to a lawyer again.

Video Statement – RCMP Officer Barr

43At approximately 12:19 p.m., Officer Barr took custody of Mr. Saini and escorted him to a video and audio recorded room. He advised Mr. Saini that he was under arrest for Importation of a Controlled Substance, Possession for the Purpose of Trafficking, and Possession of Proceeds of Crime. He advised Mr. Saini of his right to counsel and provided him with the opportunity to speak to a lawyer.

44Officer Barr also read the primary and secondary cautions to Mr. Saini. Mr. Saini confirmed that he understood and advised that he was not threatened or promised anything by the officers.

45While discussing his right to counsel, Mr. Saini advised that he did not have a lawyer but that his family or employer could “arrange”, seemingly implying they would arrange a lawyer. Officer Barr told Mr. Saini that he could not speak to his family but offered to give him a phone book to find a lawyer. Ultimately, at approximately 12:29 p.m., Officer Barr contacted duty counsel. Mr. Saini spoke with duty counsel between 1:09 p.m. and 1:14 p.m. Thereafter, Mr. Saini advised that he spoke with counsel and understood counsel’s advice.

46Officer Barr then proceeded to take Mr. Saini’s statement, which occurred between 1:14 p.m. and 2:37 p.m.

THE CREDIBILITY AND RELIABILITY OF BSO CUMMINGS’ AND BSO DONALDSON’S EVIDENCE

47There are significant credibility issues with BSO Donaldson and BSO Cummings’ evidence. As will be further discussed, these issues include BSO Donaldson and BSO Cummings telling differing stories about how they purportedly obtained supervisor authorization for the strip search. Their evidence is objectively contradicted by the CCTV evidence and by Superintendent Skovran, who testified that authorization was not given. The alleged authorization is also not documented in any of the officers’ notebooks. I have no reason to doubt Superintendent Skovran’s evidence. He acknowledged his obligations regarding strip searches and indicated that, had he been asked for authorization, he would have documented it in the notebooks.

48The credibility issues also include BSO Cummings’ evidence that Mr. Saini made “two spontaneous utterances” about the money after he entered the kiosk at or around 12:45 a.m. BSO Cummings documented the alleged spontaneous utterances in his notebook. He denied gesturing with the money and denied asking Mr. Saini about the money before the utterances were made.

49I find that BSO Cummings misrepresented what occurred in the kiosk. His evidence is directly contradicted by BSO Donaldson who testified that BSO Cummings gestured with the money and asked Mr. Saini about it. It is also objectively contradicted by the CCTV evidence which shows BSO Cummings gesturing with the money and moving his mouth as if he was speaking as soon as he entered the kiosk.

50I accept Superintendent Skovran’s evidence that at or around 12:28 a.m., he directed BSO Cummings to detain Mr. Saini. BSO Cummings did not follow that direction and he appears to have tried to cover up his non-compliance and mislead the court by claiming that Mr. Saini made spontaneous utterances.

51The credibility issues also include BSO Donaldson’s evidence regarding Mr. Saini’s request to speak to a supervisor. BSO Donaldson claimed that he informed Superintendent Skovran of the request after it was made at or around 1:39 a.m. and that Superintendent Skovran went to speak to Mr. Saini in the kiosk area. This evidence is objectively contradicted by the CCTV evidence which shows that Superintendent Skovran did not speak with Mr. Saini in the kiosk. It also shows that the he did not speak to Mr. Saini until 2:18 a.m. and that the conversation occurred in the cell area. BSO Donaldson’s evidence is also contradicted by Superintendent Skovran who testified that he was not informed of Mr. Saini’s request to speak to him until shortly before he spoke with him at 2:18 a.m.

52There were also significant reliability issues with BSO Cummings and BSO Donaldson’s evidence. For example, BSO Cummings testified that BSO Donaldson was still in the cab of the truck when BSO Cummings spoke to Mr. Saini about the money in the kiosk at around 12:45 a.m. However, BSO Donaldson and the CCTV evidence confirm that BSO Donaldson was with BSO Cummings when BSO Cummings questioned Mr. Saini.

53BSO Cummings also testified that BSO Donaldson conducted a second search of the cab after 12:45 a.m. However, BSO Donaldson’s evidence is that he did other tasks.

54BSO Cummings further testified that Mr. Saini was detained and the secondary caution was read in the cell area. However, the CCTV evidence shows that the detention and secondary caution occurred in the kiosk before Mr. Saini was taken to the cells.

55With respect to BSO Donaldson, he testified that he delayed detaining Mr. Saini after the count was complete at 1:29 a.m. because he was waiting for BSO Cummings and that BSO Cummings was present when he detained Mr. Saini at 1:39 a.m. However, the CCTV evidence shows that BSO Cummings was not with BSO Donaldson when Mr. Saini was detained at 1:39 a.m.

56BSO Donaldson also testified that the pat down of Mr. Saini took about ten seconds. However, the CCTV evidence shows that it was much longer, lasting one minute and ten seconds.

57BSO Donaldson further testified that Mr. Saini was taken to the cell area and immediately placed into cell one. However, the CCTV evidence shows that he was placed on a bench in the common area and was not placed into a cell until after the strip search was completed.

58On cross-examination, both BSO Cummings and BSO Donaldson acknowledged that their memories are not reliable. BSO Donaldson conceded that the best source of information is his notebook, which was made contemporaneous to the events. He acknowledged his typed notes were made after the fact and may not be accurate.

59I agree with the defence that there are too many inconsistencies in the evidence of BSO Donaldson and BSO Cummings to put any meaningful weight on their evidence. I do not find either officer to be credible, nor do I find their evidence to be reliable. To the extent that their evidence deviates from that contained in their notebooks or is contradicted by other evidence, I have not accepted it.

ANALYSIS

60Before I delve into each alleged violation, it is important to note that the Crown is correct that this analysis is not a “numbers game”. The issue for the court is not the number of violations, but rather the effect of the violations.

61That said, I do not agree that the defence has engaged in a “numbers game”. Each of the alleged violations represent distinct actions on the part of the officers that engaged Mr. Saini’s Charter rights. Accordingly, I have considered each of the ten alleged violations separately as presented by the defence.

A. SECTION 8 OF THE CHARTER – THE STRIP SEARCH

62On April 30, 2026, I delivered my decision and brief reasons for the violations relating to the strip search. I concluded that the officers did not have reasonable and probable grounds to conduct the strip search, and the search was not conducted in a reasonable manner. What follows is my complete reasons for that Ruling.

63Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure.

64It is undisputed that Mr. Saini was subject to a strip search, which is defined as “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas”, such as genitals, buttocks, or undergarments: R. v Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 47.

65The strip search was a warrantless search and is therefore prima facie unreasonable under s. 8 of the Charter: Golden, at para. 84. The Crown bears the burden to prove, on a balance of probabilities, that the search was authorized by law, the law was reasonable, and the search was carried out in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Shepherd, 2009 SCC 35, [2009] 2 SCR 527, at para. 15.

66Mr. Saini asserts that BSO Donaldson and BSO Cummings did not have reasonable and probable grounds to justify conducting the strip search; the search was conducted as a matter of routine. He also asserts that the officers did not carry out the strip search in a reasonable manner as significant guidelines set out in Golden were not met.

67The Crown recognized the weaknesses with its case but maintains that, based on the totality of the evidence, the officers had reasonable and probable grounds to perform the search, and the manner of search does not constitute a violation of s. 8.

68It has been more than twenty-five years since the Supreme Court in Golden considered the serious nature of strip searches and concluded that they involve a “significant and very direct interference with personal privacy” and often constitute a “humiliating, degrading and traumatic experience for individuals subjected to them”: Golden, at paras. 83 and 89.

69Section 8 is meant to protect individuals from unjustified state intrusions on their privacy. For a strip search to be constitutionally valid, it must be:

a. conducted as an incident to a lawful arrest;

b. conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

c. based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; and

d. conducted in a reasonable manner.

Golden, at paras. 91-99.

70Here, it is agreed that the detention was lawful. It is also agreed that the purpose of the strip search was to see if Mr. Saini had any more currency on his person for the proceeds of crime charge. The officers were not concerned about weapons.

71The alleged violations relate to the grounds (or lack thereof) for the strip search and the manner in which the search was conducted. I will address each in turn.

(a) Grounds for the Strip Search

72To establish that there were reasonable and probable grounds for the strip search, the Crown must establish, on a balance of probabilities, that the strip search was necessary in the circumstances of the arrest for the discovery of weapons or other evidence relating to the offence: Golden, at paras. 98-99. This is both a subjective and objective analysis: R. v Johnson, 2016 ONSC 3947, at para. 126.

73I find that the decision to conduct the strip search was made by both BSO Donaldson and BSO Cummings. The issue is whether they had reasonable and probable grounds for believing that the search would produce evidence relating to the charge (the subjective ground) and whether their belief was based on objectively discernible facts that would lead a reasonable person in their position to also conclude that Mr. Saini probably had evidence hidden on his person (the objective ground).

74BSO Donaldson testified that the search was conducted under s. 15 of PCMLTF Act and s. 98 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.). BSO Cummings claimed it was only conducted under s. 98 of the Customs Act. Regardless, both provisions are similarly worded and require the strip search to be authorized by a supervisor.

75Section 15 of the PCMLTF Act states:

Search of the person

15 (1) An officer may search

(a) any person who has arrived in Canada, within a reasonable time after their arrival in Canada,

(b) any person who is about to leave Canada, at any time before their departure, or

(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after they leave the area,

if the officer suspects on reasonable grounds that the person has secreted on or about their person currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection.

Person taken before senior officer

(2) An officer who is about to search a person under this section shall, on the person’s request, without delay take the person before the senior officer at the place where the search is to take place.

Discharge or search

(3) A senior officer before whom a person is taken under subsection (2) shall, if the senior officer believes there are no reasonable grounds for suspicion under subsection (1), discharge the person or, if the senior officer believes otherwise, direct that the person be searched.

76Similarly, s. 98 of the Customs Act states:

Search of the person

98 (1) An officer may search

(a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada,

(b) any person who is about to leave Canada, at any time prior to his departure, or

(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area,

if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.

Person taken before senior officer

(2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.

Idem

(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched

77The officers brought Mr. Saini into the disrobement room. BSO Donaldson read ss. 15 and 98 to Mr. Saini and provided him with an opportunity to read the wording for the sections posted on the wall. Mr. Saini took time to read the posting and confirmed he understood.

78Both BSO Donaldson and BSO Cummings maintained that they had reasonable and probable grounds to conduct the search, specifically:

a. The detention for proceeds of crime, and the detention statement which allows for disrobement, if approved by a supervisor;

b. The currency found exceeded $10,000 and was bundled in a manner inconsistent with normal travel (i.e., with elastic bands, and all $20 denominations);

c. Mr. Saini failed to report the currency when asked at primary;

d. Mr. Saini’s statements that he used the money to purchase gas because his gas card was not working were contradicted by gas receipts found in his cab, evidencing him having used his gas card in Canada and the USA; and

e. Mr. Saini could not produce evidence of where the money came from (i.e., an invoice or a bank statement).

79It is unclear on the evidence if the officers knew about the non-report at primary when the strip search was conducted. BSO Donaldson did not know where or how they got the information about primary.

80Further, neither officer documented their grounds in their notebooks.

81I find that the grounds put forth by the officers are the very same grounds upon which they detained Mr. Saini for possession of proceeds of crime. A lawful arrest or detention does not automatically provide authority to conduct a strip search. There must be additional grounds for concluding that a strip search is necessary in the specific circumstances of the arrest and those grounds must be established in addition to the reasonable and probable grounds justifying the arrest: Golden, at paras. 98-99; R. v. McEwan, 2017 ONSC 6055, at paras. 50-51; and R. v. Samuels, 2025 ONCA 736, at para. 51.

82The reason for requiring additional grounds beyond those forming the basis for the arrest is that a strip search is much more intrusive than a frisk search and as such, a higher degree of justification is required to support the higher degree of interference with individual freedom and dignity: Golden, at para. 98.

83I find that no such additional grounds existed here. On cross-examination, BSO Donaldson acknowledged that he did not believe Mr. Saini had any money on his person but still maintained he had reasonable and probable grounds, claiming he could have had money on him.

84I have great difficulty with BSO Donaldson’s evidence. The mere possibility that an individual may be concealing evidence is not sufficient to justify a strip search; there must be something more: Golden, at paras. 94-95, 98; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 59.

85BSO Cummings testified that they were looking for other evidence, such as receipts or notes that may have been secreted on Mr. Saini’s person to ensure that no possible evidence was left behind. I have great difficulty with BSO Cummings’ evidence as well. There exists no authority to conduct a strip search to ensure no stone is left unturned.

86To conduct a strip search, the officers required grounds for concluding the strip search was necessary in the circumstances. From a subjective perspective, I cannot conclude that they had the requisite grounds. Neither officer provided a basis for believing the search was necessary and by BSO Donaldson’s own evidence, he did not believe Mr. Saini had anything on his person.

87From an objective perspective, I similarly find that the officers did not have the requisite reasonable and probable grounds. The currency was found in Mr. Saini’s cab, not on his person. The pat down of his person was negative. When Mr. Saini was confronted with the money, he immediately told the officers it was $10,000, and indicated he thought he was permitted to have it. Mr. Saini had been waiting in the kiosk area for some time, without issue, such that there was no reasonable risk to others. And, neither officer provided any evidence that Mr. Saini’s conduct somehow led them to believe he may be hiding something on his person.

88The Crown argues that Mr. Saini was deceitful at primary when he denied having currency greater than $10,000 and deceitful when he claimed his fleet card did not work but had receipts showing he used his card for gas. The Crown submits that it is a natural progression given Mr. Saini’s deceit to suspect he might have been hiding other valuables or money on his person. The cumulative nature of these factors provides a sufficient basis to conclude that the officers had reasonable and probable grounds to conduct the strip search.

89I do not agree. I am not satisfied that the evidence supports a finding that Mr. Saini was deceitful. He immediately advised the officers of the amount of the currency when he was confronted with the money and explained that he thought he was permitted to have it. Further, if I were to accept the officers’ alleged grounds as valid, a strip search would be necessary in all detentions for proceeds of crime.

90I find that a reasonable person in BSO Donaldson’s and BSO Cummings’ circumstances, with their training and experience, could not have reasonably concluded that Mr. Saini probably had evidence hidden on his person such that it was necessary to conduct a strip search: McEwan, at para. 64.

91While the Crown submits that the defence asked questions that may have confused the officers on cross-examination, the officers did not provide any basis for the strip search beyond their grounds for detention even during their examinations-in-chief.

92I find that BSO Donaldson and BSO Cummings did not consider whether they had the necessary grounds to conduct a strip search in the circumstances. Rather, they conducted the search as a matter of routine, which they considered the next step in the process given that it was part of the detention statement.

93BSO Donaldson’s evidence was that he and BSO Cummings did not have a conversation about whether a strip search was necessary in the circumstances. The officers also did not follow protocol for strip searches. As will be further discussed, they did not set out their grounds in their notebooks and they did not obtain supervisor approval. They approached the strip search without any regard for whether it was necessary in the circumstances.

94Golden is clear that strip searches cannot be carried out as a “matter of routine policy”: at para. 95. A strip search conducted by routine will not render the search reasonable, even if it is completed reasonably under s. 8 of the Charter. This is because officers must have reasonable and probable grounds, and therefore a compelling reason, to conduct a strip search in the unique circumstances of the detention: Golden, at para. 95.

95For these reasons, I conclude that BSO Donaldson and BSO Cummings did not have reasonable and probable grounds to conduct the strip search.

(b) Unreasonable Manner of Search

96In Golden, at para. 101, the Supreme Court set out guidelines to be considered when assessing whether a strip search was conducted in a reasonable manner. They are as follows:

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?

97The guidelines are meant to be a list of best practices for the police. Failure of any one does not necessarily translate into a Charter breach: McEwan, at para. 69.

98It is agreed that BSO Donaldson and BSO Cummings complied with many of the guidelines set out in Golden, specifically guidelines 1, 2, 4, 5, 6, 9, and 10. The strip search was conducted in the private disrobement room off the cell area at the Ambassador Bridge. They protected the health and safety of those involved. The number of officers carrying out the search was limited to two, which I find to have been reasonable. Neither officer touched Mr. Saini. And, both officers were the same gender as Mr. Saini.

99Mr. Saini submits that the officers did not, however, comply with guidelines 3, 7, 8, and 11 and as a result, the manner of search was unreasonable. I will address each in turn.

Guideline #3: Will the strip search be authorized by a police officer acting in a supervisory capacity?

100The Crown concedes that it cannot establish that the strip search was authorized by a supervisor. I agree.

101There are significant credibility and reliability issues with BSO Donaldson’s and BSO Cummings’ evidence regarding supervisor approval and Mr. Saini’s request to speak to a supervisor. They tell differing stories. BSO Donaldson’s evidence was that at or around 1:39 a.m., he informed Superintendent Skovran that Mr. Saini asked to speak to him. BSO Donaldson and BSO Cummings then waited in Superintendent Skovran’s office while the Superintendent spoke to Mr. Saini. When the Superintendent returned, he gave the officers authorization to proceed with the strip search. In contrast, BSO Cummings’ evidence was that he returned to Superintendent Skovran’s office alone after Mr. Saini was taken to the cells and obtained approval from the Superintendent for the search.

102The officers’ evidence of the alleged approval is objectively contradicted by the CCTV evidence which shows that Superintendent Skovran did not speak to Mr. Saini in the kiosk area, nor did he speak to him before 2:18 a.m., after the strip search was completed. It also shows that BSO Cummings did not leave the cell area to return to the superintendent’s office.

103Both officers’ evidence is also contradicted by Superintendent Skovran who testified that he did not authorize the strip search. Superintendent Skovran provided his evidence in a forthright manner and demonstrated a clear understanding of his obligations relating to strip searches. He acknowledged that a strip search is a serious intrusion on an individual’s personal dignity and bodily integrity and was clear that he would not authorize a strip search without knowing why it was being conducted.

104Superintendent Skovran further testified that had his authorization been requested, he would have documented it in the notebooks. He would write down who made the request, outline the grounds stated, and indicate whether he said yes or no. If he refused the search, he would outline why he refused it. He is also required to date and sign the requesting officer’s notebook to indicate his authorization.

105No such approval was documented in any of BSO Cummings’, BSO Donaldson’s or Superintendent Skovran’s notebooks. BSO Cummings claimed he was not aware he was required to document the approval in his notebook.

106I find that the officers conducted the strip search without authorization. Their conduct evidences a laissez faire approach to the strip search that is not in keeping with Golden. Even on their own evidence, which I do not accept, they did not ask for authorization. Instead, they told Superintendent Skovran “we’re going to do the strip now” and claim he responded with “ok, good”. They did not provide any grounds for the strip search and claimed they would only do so if requested. This is not even close to what is contemplated by Golden.

107The officers had no appreciation for the importance of the checks and balances outlined in Golden to ensure highly invasive strip searches are not unnecessarily or unreasonably conducted. Border Security Officers do not have unfettered discretion to strip search detainees, nor do they have authority to do it as a matter of routine simply because it is noted in the detention statement.

108The officers’ impugned conduct is further aggravated by the fact that Mr. Saini asked to speak to a supervisor and a lawyer before the strip search was conducted but was not permitted to do so until after the search was completed, making his rights in this respect virtually meaningless. I will return to this issue later in my decision.

109Supervisor authorization is an essential check and balance. In circumstances where an officer is considering a strip search, the officer must request approval and in doing so, must lay out the grounds for the search and detail them in their notebooks. If authorization is given, it too must be detailed in the notebooks to enable meaningful court review.

Guideline #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?

110There is no dispute that the strip search was carried out in the private disrobement room. The issue raised by the defence relates to Mr. Saini having been viewed in his underwear on the CCTV camera positioned outside the room.

111The door to the disrobement room was closed for the duration of the search. There was no camera inside the room. When the search concluded, BSO Donaldson and BSO Cummings turned around to allow Mr. Saini to put his underwear on and then left the room to permit him to re-dress in private.

112When the officers opened the door to exit the room, Mr. Saini was briefly caught on a camera positioned outside the disrobement room. It is unfortunate that Mr. Saini was caught on camera, but I do not find it to have been intentional or even known by the officers at the time.

113This case is distinguishable from Muller. In Muller, the door to the search room was left open while the appellant was naked. He faced a hallway and could have been observed by members of either gender. Further, the search was videotaped.

114Here, the officers made every effort to conduct the strip search in private. They were not aware Mr. Saini was captured on camera. I also agree with the Crown that, while unfortunate, Mr. Saini was only captured on camera for a brief moment and if you did not know the circumstances, it would be difficult to make out who he was or what he was wearing.

115Accordingly, I do not accept that the officers failed to comply with guideline #7. That said, this is an issue that has now been brought to the Canada Border Services Agency (“CBSA”)’s attention. It should be corrected and avoided for all future disrobements. CBSA has a duty to ensure that, whenever possible, disrobements are conducted in private and not videotaped.

Guideline #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?

116I accept that the strip search was conducted quickly, lasting between 2:03:41 and 2:06:22. It was not, however, conducted in a manner that ensured Mr. Saini was not completely undressed at any one time.

117Contrary to Golden, Mr. Saini was completely naked for a full body visual inspection. BSO Donaldson and BSO Cummings instructed him to remove all his clothes except his underwear. They then searched his clothing and once done, they instructed Mr. Saini to remove his underwear. While he was completely naked, the officers proceeded to search his hair, behind his ears and under his arms. He was also asked to lift his penis and testicles and turn around and bend over for a visual of his rectum.

118Neither officer provided a reasonable explanation for why Mr. Saini was fully naked, other than it was how they were trained and CBSA policy. The CBSA policy manual in effect at the time of the search required as follows:

128. Instruct the person to remove each piece of clothing, one item at a time, and hand it to the searching officer.

129. Examine each item of clothing for any hidden contraband or evidence such as receipts.

130. Closely examine waistbands and seams of garments for evidence or anything that could be used as a weapon such as needles and razor blades.

131. After examination, fold each piece of clothing and place it on a table or chair.

132. Once the person is disrobed, view all exterior parts of the body such as the hair, under-arms, legs, and bottoms of the feet, and ask to look into the person’s mouth.

133. If necessary, instruct the person to bend over and/or squat and look for indicators (strings, lubricants, etc.) that suggest the insertion of foreign objects into body cavities. Instruct the person to spread the buttocks if necessary.

119Both officers conceded that there was no reason for Mr. Saini to be fully naked and of course, the seminal case in Golden provides that the search be performed in a sequential manner so that detainees are not completely naked at any one point.

120I find that the officers conducted the strip search in the most degrading and humiliating manner. It was wholly unnecessary for them to require Mr. Saini to be completely naked. The officers unnecessarily prolonged the intrusiveness of the search and gave no thought to limiting the implications on Mr. Saini’s privacy and dignity.

121BSO Donaldson’s evidence that Mr. Saini did not appear visibly traumatized or to be crying is irrelevant. It has long been recognized that one’s personal demeanour or visible reaction is not informative as to what they experience psychologically.

122The purported purpose of the search was to look for money. There was no basis whatsoever for the officers to believe that Mr. Saini had money hidden behind his ears or in his hair, much less under his testicles or between his buttocks. It is highly objectionable for the officers to have required Mr. Saini to, while completely naked, go through the degrading task of lifting genitals and bending over to reveal his rectum.

123Golden was released some 22 years before this strip search was conducted. There is no reason the search should have been conducted in such a highly degrading manner. CBSA should have long since updated its policy and the officers should have long since been made aware of the requirements of Golden.

Guideline #11: Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

124BSO Cummings’ notebook makes no reference to the grounds for the strip search, supervisor authorization, or the manner of search.

125BSO Donaldson’s notebook references a senior officer at 1:39 a.m., referring to Mr. Saini asking to speak to a senior officer, but makes no further reference to a senior officer or Superintendent Skovran until 2:58 a.m. Like BSO Cummings’ notebook, BSO Donaldson’s notebook makes no reference to the grounds for the strip search, supervisor approval, or the manner of search.

126While further information was added to the officers’ written reports, I do not accept that evidence. The reports were not prepared contemporaneously with the events, and I have concerns about the credibility and reliability of both BSO Cummings’ and BSO Donaldson’s evidence. Of note, the officers’ reports include the purported approval of Superintendent Skovran, which I find was not provided.

127Neither officers’ notebook notes were detailed nor were they sufficient for a highly intrusive strip search. The notes should have included their grounds for the strip search and should have detailed the manner of search. They also should have been signed by their supervisor indicating the strip search was approved.

128The officers’ failure to prepare detailed and accurate notes further evidences their failure to appreciate the intrusiveness of strip searches and the importance of the requisite checks and balances to be considered before such searches are conducted.

129The strip search was performed without prior judicial authorization. Detailed and accurate notes are therefore necessary for the court to review what occurred and ensure that the officers exercised their powers within the law. This is not a case where a judge was able to approve the search ahead of time.

130The lack of detailed evidence about precisely what was searched and how and why the search was conducted impedes meaningful judicial review of the legality of the search: Johnson, at para. 103.

(c) The s. 8 Violation

131Having considered the totality of the evidence, I find that BSO Donaldson and BSO Cummings did not take sufficient steps to protect Mr. Saini’s dignity and privacy in conducting the strip search. The manner of search is not saved by the Golden guidelines that were followed. The officers conducted the strip search in the most degrading and humiliating manner. They did so without authorization, and they failed to maintain detailed notes to permit meaningful court review.

132I therefore find that the strip search was unreasonable and amounted to a violation of Mr. Saini’s constitutional guarantees under s. 8 of the Charter. The officers did not have reasonable and probable grounds to conduct the strip search and did not conduct it in a reasonable manner.

133I find that the s. 8 violation is egregious. Strip searches are one of the most intrusive manners of search and extreme exercises of police power. They have been analogized to a “visual rape” and may be experienced by some as the equivalent of a sexual assault: Samuels, at para. 52.

134The requirements set out in Golden are important to ensure an individual’s privacy is not unnecessarily infringed. The officers’ lack of reasonable and probable grounds and supervisor authorization is highly concerning, as is the degrading manner in which they conducted the search.

135I also find that this is a systemic problem. The degrading way the officers conducted the strip search was mandated by the CBSA policy in effect at the time the search was conducted. It was also how the officers were trained to conduct a strip search, BSO Cummings in or around 2004 and BSO Donaldson in or around 2019. The officers could not recall any ongoing training regarding strip searches since their initial training. This is highly concerning.

136Golden was released in 2001. Here, we have two officers trained post-Golden, but their training did not comply with Golden. We also have a CBSA policy that did not comply with Golden. It should not have taken CBSA 23 years after the Supreme Court released Golden to update its policy to comply with the Charter.

137Further, and while CBSA ultimately did update its policy in July 2024, it appears to have done so on paper only and not in practice. Neither BSO Donaldson nor BSO Cummings were aware of the update when they testified at the hearing in early 2026. The evidence points to a very serious and concerning training and policy issue within CBSA.

138Having found a violation of the applicant’s rights under s. 8 of the Charter, I will consider the other alleged violations of his rights before determining the appropriate remedy.

B. SECTION 7 OF THE CHARTER – DETENTION FOR CHARTER PURPOSES AND RIGHT AGAINST SELF-INCRIMINATION

139Section 7 of the Charter guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This includes the right against self-incrimination.

140Mr. Saini submits that his right against self-incrimination was violated when BSO Cummings questioned him about the money at or around 12:45 a.m. Mr. Saini states that he was compelled to answer questions when the officers had the requisite grounds to detain him. The Crown denies the violation and takes the position that the examination and questioning were entirely routine.

141It is agreed that the pertinent issue for the court for the purposes of s. 7 is at what point in time was Mr. Saini detained for Charter purposes. Mr. Saini submits that he was detained at or around 12:28 a.m. to 12:45 a.m. Once BSO Donaldson and BSO Cummings found the money, they had a sufficiently strong particularized suspicion, such that BSO Cummings’ questioning of Mr. Saini went beyond the routine into a more intrusive form of inquiry.

142In contrast, the Crown submits that there was no reason to detain Mr. Saini until after the money was counted but accepts that he was detained at 1:25 a.m. when BSO Donaldson read him his right to counsel and caution. The Crown submits that BSO Cummings questioning at 12:45 a.m. was entirely routine. The currency had not yet been counted, and may not have exceeded $10,000. Based on BSO Cummings evidence, he believed it was only $5,000. The fact that a traveller attracts suspicion does not necessarily give rise to enhanced constitutional protections against self-incrimination.

143It has long been held that protecting the security of Canada’s borders and preventing the entry of illegal or contraband goods into the country through its’ borders, is of fundamental state importance: R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at paras. 30-31; R. v. Sekhon, 2009 BCCA 187, at para. 68.

144The level of personal privacy which could reasonably be expected at Customs is lower than in most other situations. Persons seeking entry into Canada are expected and required to answer questions and to cooperate with Customs officials. The routine questioning every traveller undergoes, which could include, baggage searches, pat or frisk searches, x-rays, and ION scans, do not typically engage Charter rights: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at para. 27; Jones, at paras. 32-42; R. v. Sinclair, 2017 ONCA 287, at para. 6, leave to appeal refused, [2017] S.C.C.A. No. 289; and R. v. Barac, 2021 ONSC 5294, at para. 46.

145Individual Charter rights are also not engaged simply because a border services officer becomes suspicious of a particular traveller, or a traveller is subject to a lookout, and the traveller is referred for secondary examination: Barac, at para. 48, 70.

146A robust concept of permissible routine forms of inspection applies given the importance of border security: R. v. Ceballo, 2021 ONCA 791, at paras. 20, 22. As such, the line between detention and routine investigation is not always clear.

147There are two approaches to determining whether a person seeking entry at the border is detained for Charter purposes. The first approach is the “intrusiveness branch”. Charter rights will be engaged when questions “cross the line and become intrusive” such that “they amount to a coercive or adversarial interrogation, contain improper inducements, or exert unfair pressure.” Ceballo, at paras. 20, 22.

148Context is important. As was held in Jones in the context of an investigative detention, if the officers have decided, “because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry,” the traveller may well be “detained when subject to that routine questioning”: Jones, at para. 42.

149The second approach is the “reasonable expectation” branch. In R. v Pike, 2024 ONCA 608, the Court of Appeal set out three detention factors to consider – whether the officers (a) have subjective particularized suspicion that a traveller has violated border laws; (b) subjectively decide to go beyond routine questioning and engage in a more intrusive inquiry; and (c) take actions that cause a reasonable person in the traveller’s position to expect that they would be subjected to a non-routine, more intrusive inquiry. The first two factors are subjective, while the third is objective: at paras. 116, 118-119. The final, objective step is both necessary and sufficient to establish a detention: at para. 118.

150With respect to the first step of the reasonable expectation branch, I find that the officers had a sufficiently strong particularized suspicion to go beyond routine questioning and engage in a more intrusive form of inquiry. The totality of the circumstances gives rise to much more that mere suspicion. Mr. Saini was a 100 percent match to a lookout for tobacco smuggling, five large bundles of money were found, and per BSO Donaldson’s evidence, the bundles were not typical of ordinary travel in that they were all in $20 denominations, wrapped with elastic bands. The officers also found two cell phones, with one receiving messages from various applications.

151Further, I accept BSO Donaldson’s evidence that he assumed the currency could have been $10,000. This is supported by Superintendent Skovran’s evidence that, at or around 12:28 a.m. after he was informed about the money, he suggested they detain Mr. Saini. He felt that the large sum of money and the fact that Mr. Saini was the subject of a lookout took the examination outside a routine customs examination. He testified that he expected that BSO Cummings would follow his instructions.

152BSO Cummings denied being told to detain Mr. Saini but acknowledged it was possible he was told to detain him.

153I find that even if BSO Cummings thought the bundle of money totalled $5,000 as he testified, he and BSO Donaldson had sufficient subjective particularized suspicion that Mr. Saini had broken border laws given the totality of the circumstances including the lookout, the way the money was bundled, Supervisor Skovran’s instructions, and BSO Donaldson’s belief that the money totalled $10,000. This is supported by BSO Cummings own evidence that he is the one who told BSO Donaldson to detain Mr. Saini at 1:25 a.m. Nothing changed between the time the officers found the money at or around 12:28 a.m. and the time Mr. Saini was detained at 1:25 a.m. The money had still not been counted.

154With respect to the second factor, I find that BSO Cummings subjectively decided to go beyond routine questioning and engage in a more intrusive inquiry. While I agree with the Crown that it is essential for border security that BSOs be permitted to tailor their questions to that which attracts their interest, the way the money was bundled, and the 100 percent lookout match elevated the officer’s suspicion and took BSO Cummings’ questions out of the routine examination process. They were targeted questions directed at determining whether the possession of the money was lawful. It was a more intrusive, adversarial inquiry.

155With respect to the objective third factor, I find that BSO Cummings’ actions would cause a reasonable person in Mr. Saini’s position to expect that they would be subjected to a non-routine, more intrusive inquiry. BSO Cummings was gesturing with the money when he walked into the kiosk. He knew he had found something significant.

156I also find, based on BSO Rivard’s evidence that Mr. Saini was worried. She testified that he kept trying to engage with her, asking questions, while he was waiting in the kiosk. The fact that BSO Rivard directed Mr. Saini to BSO Donaldson and BSO Cummings supports that his questions related to their examination.

157Superintendent Skovran’s instruction to detain Mr. Saini was warranted and appropriate in the circumstances. If I were to accept the Crown’s position that detention did not arise until the money was counted, the BSOs would have unfettered discretion to ask questions provided they did not count the money, potentially leading to them delaying their count to get around an individual’s Charter rights. This would defeat the purpose of the Charter.

158Accordingly, I find that Mr. Saini was detained for Charter purposes at or around 12:28 a.m. to 12:45 a.m. and that Mr. Saini’s s. 7 right against self-incrimination was violated.

159I find that the s. 7 violation is egregious. BSO Cummings disregarded his superintendent’s instruction and put Mr. Saini in an untenable situation, compelling him to answer questions and potentially incriminate himself. Further, BSO Cummings’ evidence regarding Mr. Saini having made “spontaneous utterances” was untruthful and intended to mislead the court. BSO Cummings demonstrated a reckless disregard for Mr. Saini’s Charter rights and the legal process.

C. SECTION 10 OF THE CHARTER

160Mr. Saini alleges several violations of s. 10 of the Charter. I will address each in turn.

(a) Section 10(a) of the Charter – Reasons for Detention at 12:28 a.m. to 12:45 a.m.

161Section 10(a) requires that a person who is arrested or detained be promptly informed of the reason for their arrest or detention. This section applies regardless of whether the form of detention is an investigative detention or arrest: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21; R. v. Nguyen, 2008 ONCA 49, 166 C.R.R. (2d) 207, at para. 19.

162Having found that Mr. Saini was detained for Charter purposes at or around 12:28 a.m. to 12:45 a.m., it is conceded that the officers violated his s. 10(a) right by failing to inform him of the reasons for his detention before BSO Cummings questioned him about the money around 12:45 a.m.

163For the same reasons as the s. 7 violation, I find that the s. 10(a) violation is egregious. The purpose of s. 10(a) is to ensure detainees understand the extent of their jeopardy so that they can meaningfully exercise the right to counsel conferred by s. 10(b). This includes understanding the right to silence and the right to counsel, as well as having the ability to make a meaningful choice about whether to exercise these rights: R. v Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at para. 28; Nguyen, at para. 20.

164By not informing Mr. Saini of the reasons for his detention before BSO Cummings questioned him, I conclude that Mr. Saini would not have understood the extent of his jeopardy and by extension, he could not meaningfully exercise his rights to silence and to counsel.

(b) Section 10(b), Informational Component – Informing Mr. Saini of his Right to Counsel Before Questioning him at 12:28 a.m. to 12:45 a.m.

165The informational duty on peace officers pursuant to s. 10(b) requires that detainees be informed of the right to retain and instruct counsel without delay.

166Having found that Mr. Saini was detained for Charter purposes at or around 12:28 a.m. to 12:45 a.m., it is agreed that the officers violated his s. 10(b) rights by failing to provide him with his right to counsel before BSO Cummings questioned him about the money around 12:45 a.m.

167This violation is similarly egregious for the same reasons as the ss. 7 and 10(a) violations. The purpose of s. 10(b) is to ensure detainees know their right to counsel and have access to it when they are vulnerable to the exercise of state power and in legal jeopardy: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 40-41; R. v. Brunelle, 2024 SCC 3, 2024 CSC 3, at para. 81.

168By not informing Mr. Saini of his right to counsel before BSO Cummings questioned him, the officers violated the informational component of s. 10(b) of the Charter and prevented him from exercising that right at a time when he was in serious jeopardy. The officers had found the currency, suspected that he was involved in criminality, and were improperly compelling him to answer their questions.

(c) Section 10(b), Delay in Facilitating Counsel after Requested at 1:25 a.m. (and again at 1:39 a.m.)

169Section 10(b) also guarantees the right to retain and instruct counsel without delay.

170The Crown concedes that Mr. Saini’s s. 10(b) right was violated by BSO Donaldson’s delay in facilitating the right to counsel. Mr. Saini asked to speak to counsel when he was detained at 1:25 a.m. and again at 1:39 a.m. BSO Donaldson did not make any efforts to facilitate the right to counsel until 1:55 a.m. when a message was left for duty counsel.

171BSO Donaldson’s reasons for the delay were not documented in his notebook. His evidence was that, after Mr. Saini was detained at 1:25 a.m., he waited to contact counsel because the money had not yet been counted. He reasoned that if Mr. Saini had less than $10,000, he would not need a lawyer. BSO Donaldson went into the office area and worked on his notes.

172When it was confirmed that Mr. Saini had $10,000, there was a further delay in facilitating the right to counsel because BSO Donaldson needed to detain Mr. Saini on possession of the proceeds of crime and bring him to the cell area. There was no private area in the kiosk for Mr. Saini to speak to a lawyer.

173I agree with counsel that the reasons BSO Donaldson provided for his delay in facilitating Mr. Saini’s right to counsel are not justified in law. Mr. Saini’s s. 10(b) right was violated.

174I find that the violation is of moderate severity. While not appropriate, BSO Donaldson was attempting to be pragmatic. In his mind, the initial detention was because the process was taking too long, such that he did not yet know if an offence was committed, and he was trying to complete his notes. The delay was also limited in time to approximately 30 minutes before he called duty counsel.

(d) Section 10(b) – Hold Off Questioning at 1:39 a.m. until Right to Counsel Facilitated

175Section 10(b) also requires the police to refrain from eliciting incriminatory evidence (i.e., hold off) until the detainee has a reasonable opportunity to exercise the right to counsel: Suberu, at para. 38.

176The Crown concedes that Mr. Saini’s s. 10(b) right was violated when, at or around 1:39 a.m., BSO Cummings asked Mr. Saini further questions. This occurred after Mr. Saini indicated he wished to speak to counsel at 1:25 a.m. and again at 1:39 a.m. but before he had reasonable opportunity to do so.

177BSO Cummings’ evidence is that he did not know if the right to counsel had been previously read to Mr. Saini or if Mr. Saini indicated he wished to speak to counsel. It was his understanding that since he had read the secondary caution, he could ask Mr. Saini questions about the money.

178I do not accept BSO Cummings’ evidence. Ignorance is no excuse. He knew or ought to have known that Mr. Saini had been read his right to counsel. It was BSO Cummings’ evidence that he directed BSO Donaldson to detain Mr. Saini at 1:25 a.m. He also knew the count of the money confirmed Mr. Saini had $10,000 and as such, there can be no question that his rights were engaged for Charter purposes. He should have confirmed whether or not Mr. Saini wished to speak to counsel, and whether he had reasonable opportunity to exercise his right to counsel, before questioning him.

179This violation is egregious. While Mr. Saini did not answer BSO Cummings’ questions, BSO Cummings flagrantly disregarded the right to counsel. He should have known the secondary caution does not trump the right to counsel or his obligation to hold off until that right is facilitated.

(e) Section 10(b) – Failure to Hold Off Strip Search until Right to Counsel Facilitated

180Mr. Saini submits that BSO Donaldson and BSO Cummings also violated his s. 10(b) rights by failing to allow him a reasonable opportunity to consult counsel before the strip search. BSO Donaldson left a message for duty counsel at 1:55 a.m. Duty counsel returned the call at 2:30 a.m. In the intervening period, the officers conducted the strip search.

181The Crown submits that this is not a separate violation. It is part and parcel of the delay in facilitating the right to counsel, which was conceded. The decision in R. v Thompson, 2025 ONCA 500, 178 O.R. (3d) 81, had not yet been released when the strip search was conducted and as such, there was no right to re-consult counsel before being strip searched.

182I disagree. While this is not a re-consult case, Mr. Saini had a right to consult with counsel before the strip search occurred. The implementational duty of s. 10(b) required the officers to hold off questioning or otherwise attempting to elicit evidence until Mr. Saini had a reasonable opportunity to consult with counsel: Suberu, at para. 38.

183Thompson was not the first appellate decision to recognize the importance of facilitating the right to counsel before a highly invasive strip search is conducted. In Simmons, a 1988 decision involving a strip search at the border, Dickson C.J., writing for the majority of the Supreme Court, held as follows, at paras. 55-56:

… the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.

Although the Court has not been asked to decide the point, I am of the view that the denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. In my view, the violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.

184In the 2001 decision R. v. Carpenter, the British Columbia Court of Appeal relied on Simmons to find a right to re-consult counsel prior to a strip search at the border. The court held that strip searches are extremely invasive such that it is important to ensure an accused is well advised of their rights and choices: Carpenter, 2001 BCCA 31, at para. 35, leave to appeal refused, [2002] S.C.C.A. No. 302; Thompson, at para. 63.

185In the 2016 decision R. v McGuffie, 2016 ONCA 365, at para. 81, the Ontario Court of Appeal criticized the police for failing to provide the right to counsel before conducting a strip search. Doherty J.A., writing for the court, held that had the appellant been “afforded an opportunity to speak to counsel before the strip search, it may well be that the strip search would have been unnecessary”: McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 81. The same can be said here. Had Mr. Saini been afforded his right to counsel before the strip search, the strip search may not have occurred.

186I do not agree with the Crown that the officers’ failure to facilitate access to counsel is restricted to the delay. They made a separate decision to proceed with the strip search to elicit further evidence that may have been secreted on Mr. Saini’s person without first affording him a reasonable opportunity to consult a lawyer. This constitutes a separate breach of s. 10(b) of the Charter.

187The officers proceeded with the strip search within eight minutes of the call having been placed to duty counsel. There was no safety concern or other reason to warrant the search proceeding so quickly. The officers had an obligation under s. 10(b) to hold off on further investigation pending Mr. Saini having reasonable opportunity to speak to counsel.

188I find that this violation, like the strip search violations, is egregious. The officers flagrantly denied Mr. Saini his right to counsel at a time when he needed it most, just before they subjected him to a degrading and highly intrusive strip search that was wholly unnecessary in the circumstances. The officers’ failure to hold off on the strip search rendered Mr. Saini’s right to counsel virtually meaningless.

189The violation is also a systemic problem. BSO Donaldson’s evidence was that his training was to place the phone call to counsel and then proceed with what he is doing. He understood that there was no requirement for him to wait for duty counsel to call back. BSO Cummings provided similar evidence – it was his understanding that since he had read the secondary caution, he could ask Mr. Saini questions about the money without determining whether he had requested to speak to counsel. The officers either do not care about the Charter or lack the requisite training to fully appreciate an individual’s Charter rights and the officers’ corresponding obligations.

(f) Section 10(b), BSO Donaldson and Counsel of Choice

190Section 10(b) of the Charter also includes the right to retain and instruct counsel of choice: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35.

[191] Mr. Saini submits that BSO Donaldson did not give him an opportunity to consult counsel of choice, thereby violating his s. 10(b) Charter rights. BSO Donaldson did not ask if he had a lawyer he wished to call and no alternatives to duty counsel were offered.

192The Crown denies the violation. At no time did Mr. Saini request a specific counsel. Further, he indicated, when asked, that he was satisfied with his calls with duty counsel.

193The onus is on Mr. Saini to prove on a balance of probabilities that there has been a violation of his s. 10(b) right to counsel of choice.

194It has long been held that the choice of counsel is the choice of the detainee, not the police. The fact that duty counsel may be readily available does not trump the detainee’s right to counsel of choice: R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at paras. 33-40; R. v. Kumarasamy, [2002] O.J. No. 303 (Ont. S.C.), at para. 21; R. v. Tran, 2006 ONCJ 101, at para. 26; and R. v. Virk, 2025 ONSC 5790, at paras. 63-65.

195The police are required to take all reasonable steps in the circumstances to put a detainee in contact with their chosen lawyer, which may include permitting a phone call to a family member if the call is required to facilitate counsel of choice and will not otherwise jeopardize the investigation: Kumarasamy, at paras. 25-26; Johnson, at para. 154; and Virk, at para. 64.

196BSO Donaldson’s evidence is that at 1:25 a.m., he read from his officer handbook that he was detaining Mr. Saini due to the process of the customs examination taking too long. Mr. Saini indicated he understood. BSO Donaldson read the right to counsel, including that Mr. Saini has the right to retain and instruct counsel of his choice. He asked Mr. Saini if he understood the right. Mr. Saini responded yes.

197BSO Donaldson then asked if Mr. Saini wished to call a lawyer. Mr. Saini did not initially answer the question. He kept saying he wanted to call his wife. BSO Donaldson told him he could not call his wife at that time and repeated his question about calling a lawyer. Ultimately, Mr. Saini indicated he wished to call a lawyer. BSO Donaldson acknowledged the request.

198At 1:39 a.m., BSO Donaldson detained Mr. Saini for possession of proceeds of crime. He again read the right to counsel from his reference book, including the part that indicates he has the right to retain and instruct counsel of choice. He asked Mr. Saini if he understood the right to counsel. Mr. Saini responded that he did. He asked Mr. Saini if he wished to speak to a lawyer. Mr. Saini responded yes. BSO Donaldson then facilitated the right to counsel by calling duty counsel at 1:55 a.m.

199BSO Donaldson’s evidence was that in his experience, if the detainee already has a lawyer he wishes to call, he will tell him he has a lawyer. Because Mr. Saini did not indicate he had a lawyer, he put him in contact with duty counsel.

200Mr. Saini spoke to duty counsel at or around 2:30 a.m. Once the call was complete, BSO Donaldson asked him if he was satisfied with the call. Mr. Saini said yes. Mr. Saini spoke with duty counsel two additional times while in custody. He indicated he was satisfied with his subsequent calls as well.

201After considering all the evidence, I am not satisfied on a balance of probabilities that BSO Donaldson violated Mr. Saini’s right to counsel of choice. At no time did Mr. Saini advise that he had a lawyer or that he needed to contact his wife to facilitate contact with a lawyer.

202I do not accept that BSO Donaldson somehow limited Mr. Saini’s choice of counsel. BSO Donaldson advised Mr. Saini he had the right to counsel of choice and repeatedly asked him if he wished to contact a lawyer. It was Mr. Saini who did not answer the question. If he had a lawyer or wished to contact his wife to arrange a lawyer, it was incumbent on him to tell BSO Donaldson. He did not do so.

203I accept BSO Donaldson’s evidence that in his experience, detainee’s often ask to speak to family members. While BSO Donaldson could have asked Mr. Saini why he wanted to call his wife, no evidence was presented that Mr. Saini wanted to call his wife to facilitate a lawyer or that he linked the request to his counsel of choice. I also accept BSO Donaldson’s evidence that, in his experience, if an individual has a lawyer, they will inform him of such. And Mr. Saini indicated on three occasions that he was satisfied with his call to duty counsel.

204No evidence was presented to support there having been a language barrier such that Mr. Saini did not understand his right to counsel of choice. BSO Donaldson’s evidence is that Mr. Saini appeared to understand him. This is also evident in the video statement Mr. Saini provided to Officer Barr. He told Officer Barr that he can read English well and engaged appropriately in conversation with him in English. The court cannot assume, simply because English is not Mr. Saini’s first language, that there was a language barrier. It was open to Mr. Saini to provide this evidence. He chose not to do so.

205Accordingly, I find that Mr. Saini has not met his burden to establish, on a balance of probabilities, that BSO Donaldson violated his s. 10(b) right to counsel of choice.

(g) Section 10(b), RCMP Officer Barr and Counsel of Choice

206Mr. Saini submits that RCMP Officer Barr similarly denied him the opportunity to consult counsel of choice during the recorded interview, thereby violating his s. 10(b) right.

207The Crown denies the violation. Mr. Saini did not specifically state that he needed to contact his family or employer to arrange counsel. Further, Officer Barr provided him with an opportunity to look in the phone book to find counsel; he was not restricted to duty counsel.

208The video recording of the interview starts at approximately 12:19 p.m. Shortly after introductions, Officer Barr advises Mr. Saini that he has the right to retain and instruct counsel, and they engage in a discussion about whether Mr. Saini wishes to speak to a lawyer. It is helpful to reproduce this portion of the transcript (page 3-4):

CB: Okay. Um, you’re not um, uh, you have the right to retain and instruct counsel without delay uh, that means you can speak to a lawyer, any lawyer you wish okay?

HS: Yeah, I, because what happened…

CB: And that’s what I’ll ask you is …

HS: _________

CB: Do you want to speak to a lawyer?

HS: Yeah because I first talk to my wife, my uh family because they don’t know what’s going on even I don’t …

CB: Sure.

HS: Know what’s going on.

CB: Okay. And I’m gonna explain a lot of those things to you but it’s important that you’re appraised of your rights and the other thing is that uh do, do you wanna speak to a lawyer right now?

HS: I have no lawyer, I think my family arrange or …

CB: Okay. So, if you don’t have a lawyer in mind there’s several options for ya right so there’s gonna be, you can speak to a lawyer of your choice, you can speak to a um uh legal aid duty counsel, I can get you a phone book something like that, um you know and if you don’t have a lawyer that, that’s, that’s completely up to so I understand that previous that you spoke to legal aid and I don’t wanna change your opinion about who you wanna speak with but those are your choices kay, um, and so you can, you can choose those options right uh but I want it to be your choice, I don’t wanna influence your choice at all kay, so, um do you wanna talk to a lawyer?

HS: Yeah, I first talk to my family because they don’t know where I am.

CB: Yeah.

HS: And…

CB: So, I have to get you to talk to a lawyer, I can’t give, give you a call to your family but I can get you in touch with your lawyer.

HS: Okay.

209Officer Barr then indicates he understands Mr. Saini is concerned about his family and that he will address that later. Mr. Saini tries to discuss the charges, but Officer Barr brings him back to the question of whether he wishes to speak to a lawyer (page 5-6):

CB: Um, now, uh, we’ll go back to the lawyer um, is there, is there anyone in particular that you’d like me to contact again I can’t have you contact your family but would you like to speak to a lawyer?

HS: Yeah, I speak to the lawyer but uh the thing is that uh so when I able to talk to my uh, my family, my, my wife so they guys all my company also because they guys the raise the lawyer and because I am work for them and they tell me uh okay leave it so they have to arrange.

CB: Okay, so, but again they’re not here…

HS: Yeah.

CB: And I can’t get you in touch with them so it’s your choice how you wanna proceed with that so if you’d like to talk to a lawyer of your choice get you a phone book, an internet search, you can uh call legal aid, that’s a 24 hours telephone service, they provide legal advice um and it’s a free service kay, but those are the options that, hat you have so unfortunately I can’t call your wife to say can I get a lawyer for him I have to get you in touch with some, like a, a legal representation if you wanna talk to a lawyer.

HS: Okay, I, I want it.

CB: Okay.

HS: Yeah.

CB: Um, who would you like to speak with do you know?

HS: I have no idea which one is a good lawyer…

CB: Yeah.

HS: And uh, starting the process and after this uh my family or my uh the, the starting people and uh…

CB: Mhm. Okay. Um, and I can’t influence that choice about whose a good lawyer, whose a bad lawyer I can’t do that so it’s, it’s up to you would you like to, you can call uh a lawyer of your choice, someone that you choose if you don’t know a lawyer…

HS: Okay, I have one questions…

CB: Yeah.

HS: So, uh, you have idea how many days uh, like uh, the I, I contact to my family like uh…

210Officer Barr explains that Mr. Saini will eventually be brought in front of a judge and again redirects him to the issue of whether he wishes to speak to a lawyer (page 6-7):

CB: …Um, so again I have to ask you those options is what would you like to do, would you like to talk to a lawyer today?

HS: Yeah, if it is uh free because I know….

CB: Kay.

HS: Have you know that the

CB: Sure.

HS: Know uh the, my first starting point…

CB: Yeah.

HS: But the, I need a lawyer.

CB: Okay, so what I’ll do is, I can contact Legal Aid for you, I’ll get you a private phone call okay?...

211Thereafter, Officer Barr contacts duty counsel and waits with Mr. Saini for the call to be returned. During the wait, he writes down the list of charges against Mr. Saini and gives the list to Mr. Saini so that he has it when he speaks to duty counsel.

212After considering all the evidence, I am not satisfied on a balance of probabilities that Officer Barr violated Mr. Saini’s right to counsel of choice. At no time did Mr. Saini advise that he had a lawyer or that he needed to contact a third party to facilitate a lawyer. In fact, his words were “I have no lawyer.”

213Officer Barr’s statements that Mr. Saini cannot contact his wife to get a lawyer cannot be considered in isolation. Yes Mr. Saini asked to speak with his wife and said “my family arrange” and “my wife…my company…they guys…raise the lawyer”, but he also said: “I have no lawyer” and “I have no idea which one is a good lawyer” and then agreed to speak to duty counsel “if it is uh free.”

214In this context, I cannot conclude on a balance of probabilities that Mr. Saini was asking to speak to his wife or company for the purpose of facilitating his right to counsel. Rather, he seems to have been referring to payment for the lawyer when he said they would arrange and raise the lawyer.

215Further, Mr. Saini appears to have wanted to speak to his family because he was concerned they did not know what was happening. He told Officer Barr: “I first talk to my wife, my uh family because they don’t know what’s going on”, “I first talk to my family because they don’t know where I am”, and then asked “So, uh, you have idea how many days uh, like uh, the I, I contact to my family..”, seemingly asking how long until he can contact his family.

216Officer Barr repeatedly redirected Mr. Saini to the issue of whether he wished to speak to a lawyer and stressed that it was his choice who he speaks to. He offered him a phone book, an internet search, and access to legal aid. While he did say he could not call his “wife to say can I get a lawyer for him”, this was in the context of Mr. Saini advising that he does not have a lawyer and does not know what lawyers are good.

217I do not accept that Officer Barr limited Mr. Saini’s counsel of choice or somehow took advantage of the fact that English is not Mr. Saini’s first language. As already noted, Mr. Saini told Officer Barr he reads English well and appropriately engaged in conversation with Officer Barr, such that he appeared to understand what was being said.

218In the circumstances, I find that there was no reason for Officer Barr to ask Mr. Saini for clarification. It is not reasonably clear on the evidence that Mr. Saini wanted to speak to his wife or company to arrange counsel or that there was a language barrier. It was open to Mr. Saini to provide evidence regarding his intent and comprehension of what was discussed, but he chose not to do so.

219Accordingly, I find that there was no violation of Mr. Saini’s right to counsel of choice by Officer Barr.

D. REMEDY - SECTION 24(1) –STAY OF PROCEEDING

220In summary, I have found seven violations of Mr. Saini’s Charter rights, specifically ss. 7, 8, 10(a), 10(b) (informational component), 10(b) (delay in facilitating counsel), 10(b) (BSO Cummings’ failure to hold off questioning), and 10(b) (failure to hold off the strip search).

221As a remedy, Mr. Saini applies for a stay under s. 24(1). The Crown submits that there are lesser remedies available, including the exclusion of Mr. Saini’s verbal utterances and a reduction in sentence, if he is ultimately found guilty of any of the offences.

222As a preliminary issue, there was a dispute about the admissibility of a March 2026 report published by the University of Western Ontario, Faculty of Law, entitled Unlawful Enforcers: Charter Violations by Major Ontario City Police Services, which Mr. Saini sought to introduce into evidence. The report analyzes Charter decisions between January 1, 2015 and May 31, 2025 involving the Toronto, Peel, York, Durham, and Ottawa Police Services. The defence requests that the report and its recommendations be considered as part of the 24(1) analysis.

223The Crown objects to the admissibility of the report on the basis that it is not relevant. I agree. The report does not relate to the CBSA or the RCMP. And, while the authors make various recommendations regarding the Charter, I am bound by the law as it currently exists. For these reasons, I have not considered this report as part of my decision on the appropriate remedy.

224A stay of proceedings is the most drastic remedy available. It will only be warranted in the clearest of cases, where the state conduct either compromises the fairness of an accused’s trial, or risks undermining the integrity of the judicial process. The test for determining whether a stay under s. 24(1) of the Charter should be granted is as follows:

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

b. There must be no alternative remedy capable of redressing the prejudice; and

c. 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.

R. v Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32.

225Here, I find that the violations fall under the residual category. The officers’ conduct is “offensive to societal notions of fair play and decency” such that “proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, at para. 35.

226I have considered the totality of the circumstances. Mr. Saini was strip searched in circumstances where the officers did not have reasonable and probable grounds or supervisor authorization to conduct the search. The strip search was conducted in the most degrading manner, requiring Mr. Saini to stand completely naked while the officers searched his hair and behind his ears. They also made him lift his genitals and bend over to reveal his rectum. And the search was conducted without detailed notes to permit meaningful court review.

227Aggravating the s. 8 violation is the fact that the strip search was done after BSO Donaldson delayed facilitating Mr. Saini’s right to counsel, BSO Cummings failed to hold off questioning him, and both officers failed to hold off on the strip search to permit Mr. Saini reasonable opportunity to exercise his right to counsel.

228It is also seriously aggravating that Mr. Saini was detained and questioned by BSO Cummings without having been informed of the reasons for his detention and his right to counsel. He was compelled to answer questions that had the potential to incriminate him, and after he gave those compelled answers, BSO Cummings attempted to mislead the court by claiming that the answers were “spontaneous utterances”.

229Cumulatively, the violations are egregious. The conduct in this case reflects a significant disregard and lack of appreciation for an individual’s Charter rights.

230The test in Golden was adopted in 2001, approximately 23 years before the subject search was conducted. In 2019, it was held in R. v. Tashanna Mullings, a similar case involving an unreasonable strip search, that “[t]his is not a situation where the law was unclear”: R. v. Tashanna Mullings, 2019 ONSC 2408, at para. 43.

231Like the strip search in Tashanna Mullings, the strip search here “bore little resemblance to the individualized case assessment mandated by the Supreme Court, resembling more of a rote procedure for processing” detainees for proceeds of crime “regardless of the individual circumstances”: Tahsanna Mullings, at para. 43.

232While I agree with the Crown that it would be naive to expect there will never be Charter breaches, it is deeply disturbing and unacceptable that, in 2023, border security officers conducted a strip search without reasonable and probable grounds, without supervisor authorization, and without detailed notes, and that the strip search was conducted contrary to Golden, in the most humiliating manner, requiring Mr. Saini to be completely naked.

233It is also disturbing that BSO Donaldson did not appreciate the importance of promptly facilitating the right to counsel, nor did he or BSO Cummings appreciate the need to hold off questioning or the strip search until Mr. Saini had reasonable opportunity to consult counsel. BSO Cummings even went so far as to say it was his understanding he could ask questions provided the secondary caution was read. This reflects a complete ignorance of the significance of providing a detainee with the right to counsel. The officers either did not care about Charter rights, or they were not adequately trained or informed of those rights.

234I find that this is a systemic problem. Contrary to Golden, CBSA’s disrobement policy mandated a completely naked search. Further, and while the policy was updated in July 2024, it was only updated on paper. Neither BSO Donaldson nor BSO Cummings were aware of the update; they learned of it for the first time in cross-examination.

235It was open to the Crown to call evidence to mitigate the systemic nature of the violation by explaining why CBSA’s disrobement policy was not updated until July 2024 and why two of its officers were unaware of the update and a number of their other Charter obligations. The Crown chose not to do so.

236It is highly concerning that it took CBSA 23 years since Golden to update its disrobement policy and that in 2026, at least two of its officers had no idea the update was made or of the important guidelines for strip searches set out by the Supreme Court of Canada in Golden. CBSA has an obligation to educate and train its officers. They hold tremendous powers and with those powers comes the responsibility to ensure that they remain within the confines of the law fully respecting Charter rights.

237In these circumstances, I find that there is no remedy, aside from a stay of proceedings, that is capable of adequately addressing the harm to the system. Given the passage of time since Golden, CBSA should have long since updated its disrobement policy to comply with the Charter. It should have also long-since properly trained its officers regarding the requirements for a strip search, as well as the importance of an individual’s ss. 7 and 10 Charter rights and the officers’ corresponding obligations.

238The lesser remedies proposed by the Crown do not adequately dissociate the justice system from the impugned conduct. The exclusion of Mr. Saini’s statements regarding the money would not adequately address the seriousness of these violations and it would be grossly unfair to put Mr. Saini through a trial in these circumstances, with a sentencing remedy only applying if guilt is found.

239Like in Tashanna Mullings, where a stay was also ordered, the violations here speak “to systemic problems that are incapable of being remedied by an individualized remedy such as a sentence reduction. A stay speaks to the Court’s attempt to dissociate from this conduct going forward, and better protects the integrity of the system from condonation of a gross departure from the expected standard”: Tashanna Mullings, at para. 46.

240While I am not left in doubt that a stay is warranted after considering stage 1 and 2 of the 24(1) analysis, I still find it important to address the nature of the offences before the court: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 78. I agree with the Crown that these offences are serious. One hundred and twenty-one bricks of cocaine, valued at between $10.8 and $13.2 million dollars, were found in the trailer of Mr. Saini’s truck. The offences, if proven, could carry a life sentence. Although it is somewhat comforting that the cocaine was seized and did not make it onto the streets, the seriousness of the alleged offences made this decision very difficult.

241Cases warranting a stay of proceedings within the residual category are exceptional and rare: Babos, at para. 44. This is one of those cases. The harm to the system in allowing the trial to proceed in the face of the egregious Charter violations far outweighs the seriousness of these offences.

242The Charter is of fundamental importance in Canadian society. It protects everyone’s basic rights and freedoms, which are essential to a free and democratic society. The state must respect Charter rights and freedoms and remain within the bounds of the law.

243The court cannot condone the unreasonable strip search or the other violations of Mr. Saini’s Charter rights. The law in this respect has been clear for far too long for these egregious violations to be allowed to continue or for a lesser remedy to apply in the circumstances of this case.

244As a result of the findings of violations of Mr. Saini’s rights pursuant to ss. 7, 8 and 10(a) and (b) of the Charter, I enter a stay of proceedings pursuant to s. 24(1) of the Charter in relation to all charges before the court.

Jennifer E. Bezaire

Justice

Released orally and in writing: May 22, 2026

COURT FILE NO.: CR-24-6385