This week’s top three summaries: R v BL, 2021 ONCA 373: presumed guilt & #trial attendance, R v Goodman, 2021 SKCA 78: as soon as practicable, and R v Brown, 2021 ONSC 3862: #strip #search.
R v BL, 2021 ONCA 373
[June 2, 2021] Credibility of the Accused: Used of Access to Disclosure and Presence at Trial to Disbelieve Accused [Reasons by K. Feldman J.A. with M. Tulloch and C.W. Hourigan JJ.A. concurring]
AUTHOR’S NOTE: Full access to police and Crown files has been mandated across the country since the early 1990s. Fundamentally, it is one of the ways in which the overwhelming power of the state can be brought to balance in criminal trial. In the digital age, trials without access to these records would be incredibly unfair. However, there appears to be a belief (conscious or unconscious) in some parts of the judiciary that access to this disclosure by accused persons somehow deprives their testimony in court of credibility. In decisions that have been appearing alarmingly frequently (at least to this author) in recent years, judges have explicitly used access to disclosure by the accused a means of undermining their credibility. They say things like their stories are contrived to meet the disclosed materials or their version of events is tailored to meet the testimony of Crown witnesses. Either example is reduced to the same issue: the ability to know the Crown’s case in advance. As may be obvious, any such belief reverses the onus of proof (perhaps in an irreparable way) in the cases where it appears. In this decision, Justice Feldman re-affirms the Ontario Court of Appeal’s firm position that this line of reasoning is forbidden to judges.
Facts
[1] The appellant appeals from his conviction of sexual assault, entered by a trial judge sitting without a jury. He was charged with sexual assault causing bodily harm, but was acquitted of causing bodily harm and convicted on the included offence.
[2] The complainant and the appellant were college acquaintances who got together one evening at the appellant’s residence after he contacted her when two of his old friends had been in a car accident earlier that day. Following a few hours of conversation, they moved from his living room to his bedroom. He began massaging her, which led to mutual consensual oral sex. That was followed by vaginal intercourse. The complainant said the appellant then penetrated her anally, which he denied.
[4] The appellant appeals his conviction on the basis that the trial judge made a number of errors in her credibility analyses of both parties. While I would not give effect to the specific errors as framed by the appellant, it was an error of law for the trial judge to impugn the appellant’s credibility on the basis that his evidence was tailored to the complainant’s evidence that he heard as part of the Crown’s case at trial. For that reason, I would allow the appeal.
The Trial Judge’s Decision
[8] The trial judge listed three main reasons for rejecting the appellant’s account and expressed general concerns about his veracity. The three main reasons were: (1) his account was internally inconsistent; (2) his account of the conversation during the massage, prior to any sexual activity, did not ring true; and (3) his evidence about what the complainant said was not plausible. In addition, the trial judge did not find the appellant to be a credible witness because of the way he answered questions put to him by the Crown in cross-examination.
The appellant’s account of the conversation during the massage, prior to any sexual activity, did not ring true
[11] In his examination-in-chief, the appellant described the sequence of events from when he removed the complainant’s pants and continued the massage of her legs and thighs. At that point, the complainant asked him if he thought they were going to have intercourse, he said he would like to, and she said, “[i[f you want to do it, let’s just do it,” which he took to mean she was agreeing to all sexual activity up to and including intercourse. He initially repeated this account in cross examination, but then agreed with Crown counsel that the complainant asked about a condom, and that he responded by swearing on his nephew’s head that he was clean. In his version, the complainant did not say to him she would not have sex without a condom. Rather, the complainant simply asked the appellant whether he had a condom, he confirmed to her that he was “clean,” and then she said, “[i]f you want to do it, let’s just do it.”
[12] The trial judge found it odd that the appellant gave the same account twice without mentioning the complainant’s question about the condom, but then suddenly remembered it later in cross-examination. She had a doubt about “whether [the appellant’s] evidence [was] genuine or whether he [was] reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue.”
The appellant was not a credible witness
[16] The trial judge found the appellant incredible as a witness. He denied all the suggestions the Crown made to him, even when they were consistent with his earlier evidence. The primary example was his insistence that he did not try to convince the complainant to have sex, although this was contradicted by his actions and the words he admitted to. Another example was his denial that they went to the bedroom in part because they were concerned about the noise disturbing his roommates. He said the living room was the farthest away from the bedrooms, while his roommate said the living room was next to the bedrooms they respectively occupied. The trial judge also rejected as illogical, the appellant’s testimony that he did not try to convince the complainant to stay over at his place after they stopped having sex in the early hours of the morning, which she said he did.
Conclusion
[23] The trial judge ultimately accepted the complainant’s evidence that when the appellant began to rub his penis near her vagina, she said no to intercourse without a condom, and rejected the appellant’s evidence that after he swore he was clean, she said “let’s just do it.” The trial judge found there was no consent to the digital penetration or to the vaginal or anal intercourse.
Analysis
Overview
[28] This is not a case where the complaint is that the trial judge failed to address the alleged inconsistencies or misapprehended the evidence. Rather, the appellant is challenging the trial judge’s assessment of the evidence and her decision whether to accept or reject it.
[29] It is trite law that an appellate court is required to give considerable deference to the factual findings of a trial judge and particularly to the trial judge’s credibility findings: see R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 32; R. v. DaCosta, 2017 ONCA 588, at para. 19; R. v. Chhina, 2016 ONCA 663, 340 C.C.C. (3d) 496, at para. 21; R. v. Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34; R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 21; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. Unless the trial judge has arrived at an unreasonable verdict based on the evidence, it is not the role of an appellate court to reassess the evidence or to substitute its view of the credibility of the parties for the view of the trial judge.
[30] Even where the trial judge fails to consider a prior inconsistent statement by the complainant, the Supreme Court of Canada recently stated in R. v. Smith, 2021 SCC 16, that when assessing a complainant’s credibility and reliability, the error must have affected the outcome and caused a miscarriage of justice to warrant a new trial.
[31] At trial, both parties agreed that the massaging and oral sex were consensual. They also agreed that vaginal intercourse occurred. What they did not agree on was whether the complainant consented to have vaginal sex and anal sex, and whether the anal sex occurred. The trial judge did not believe the appellant’s version, which was that when the complainant asked about a condom, he answered that he was clean, and she then said: “If you want to do it, let’s just do it.” Instead, the trial judge accepted the complainant’s evidence that she said no to sexual intercourse without a condom and that after his response about being clean, the appellant immediately thrust his penis into her vagina. The trial judge also accepted the complainant’s evidence that the appellant penetrated her anally.
[32] The appellant’s position on appeal is that the trial judge should have doubted the credibility and reliability of the complainant generally.
[33] The appellant also submits that the trial judge applied a stricter standard when assessing the appellant’s credibility than when assessing the complainant’s credibility. As I have found that the trial judge made an error of law in her assessment of the appellant’s credibility requiring a new trial, I will turn directly to the third ground of appeal.
The trial judge’s relative scrutiny of the parties’ evidence
[35] It is important to set this submission within the current legal framework for this type of error. Following the oral argument in this case, the Supreme Court of Canada released its decision in R. v. Mehari, 2020 SCC 40, 452 D.L.R. (4th) 410, an appeal from the Court of Appeal for Saskatchewan in which the appellant argued uneven scrutiny of the evidence. In brief reasons, the court stated:
This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.
[39] The trial judge rejected the appellant’s evidence and found that, based on the condom discussion as described by the complainant, that she had not consented to intercourse. The trial judge was entitled to find that the appellant’s failure to mention the condom discussion in his initial description of their interchange could well undermine his credibility.
[40] However, as mentioned above, there is another problem with the finding and approach of the trial judge to the appellant’s evidence on this issue. The trial judge found that the fact that the appellant suddenly remembered this critical detail only later in the cross-examination ‘”raises a doubt in my mind about whether his evidence is genuine or whether he is reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue.”
[43] The credibility issue for the trial judge to resolve therefore was whether the appellant’s failure to mention the condom discussion in his initial recitation of what happened between him and the complainant undermined his credibility, not whether he had fabricated a conversation that both parties agreed occurred.
[44] Second, the effect of the trial judge’s comment was that she disbelieved the appellant, not for the reasons suggested by the Crown, but because she used his right to be present at his trial against him, by suggesting that he may have fabricated or reconstructed the condom discussion after he heard the complainant say it earlier.
[45] This court has recently reiterated that such an error by a trial judge, accusing an appellant of effectively tailoring his evidence to the evidence heard in court, undermines the appellant’s right to be present at his trial and to make full answer and defence: see R. v. M.D., 2020 ONCA 290, 392 C.C.C. (3d) 29; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14.
[46] The issue first arose in R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), a jury trial where the Crown suggested to the accused in cross-examination that his answers were crafted around the disclosure he had received. Doherty J.A. acknowledged that if a witness appears to have tailored his evidence to respond to information provided to him, there is a tendency to infer that the evidence is suspect. However, it is an illegal inference when drawn against an accused, who is entitled to hear about and defend against the Crown’s case. As Doherty J.A. explained, at pp. 767-68:[T]here may be considerable force to the suggestion that a person who gets full advance notice of the other side’s evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons.
[47] This court has applied similar reasoning in the context of judge-alone trials: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230. In R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, the trial judge discounted the accused’s evidence in her assessment of his credibility because he had the benefit of listening to the legal arguments presented by his counsel and by the Crown on the voir dire. On appeal, this court again confirmed that even though there may be a “natural temptation” to reason the way the trial judge did, that temptation must be resisted. It subverted the accused’s right to be present at his trial under s. 650(1) of the Criminal Code, as well as his s. 7 right to a fair trial and his s. 11(d) right to full answer and defence under the Canadian Charter of Rights and Freedoms: at para. 12.
[48] The jurisprudence on tailoring evidence applies to the case at hand. The trial judge committed a legal error when she discounted the appellant’s credibility on the basis that he had “reconstructed” or “fabricated” the condom discussion after attending his trial and hearing the complainant’s evidence. The trial judge’s reasoning turned the appellant’s constitutional rights into an evidentiary trap.
[50] I would not apply the proviso in this case. The parties’ credibility was the significant issue at trial. The trial judge gave three main reasons for rejecting the appellant’s evidence and finding that it did not raise a reasonable doubt, and his testimony about the condom discussion was one of them. The error therefore appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred.
CONCLUSION
[51] In the result, I would allow the appeal and order a new trial.
R v Goodman, 2021 SKCA 78
[May 19, 2021] 80 or Over: As Soon As Practicable [Reasons by Barrington-Foote J.A., with Ottenbreit and Tholl JJ.A. concurring]
AUTHOR’S NOTE: Police officers responding to Impaired and 80 or Over investigations often display a deep need to tow the accused’ car no matter who is present that can safely take the car home or where the car is located. Some of this can now be attributed to legislation mandating it, but this trend existed long before such legislation forced it. Here, this deep need delayed getting the accused to the breath tech at the police station even though the car was safely parked in a parking lot. Where police indulge in this impulse at the cost of complying with the legislated requirement to get the accused to the breathalyzer as soon as practicable, they risk their whole prosecution. Here, the delay cost them the case.
Introduction and Background
[3] I have concluded that the Appeal judge erred in finding that the breath samples were taken as soon as practicable. Accordingly, the s. 258(1)(c) presumption did not apply and Mr. Goodman’s conviction must be set aside and an acquittal substituted. For that reason, it is not necessary to address his Charter arguments.
[4] The events that led to this conviction are now long past. Late on the evening of September 4, 2017, Mr. Goodman parked his truck in the parking lot of a bar in northwest Regina. A bystander saw him park, exit his car and enter the bar. Regina Police Service Constables Fink and McDonald, who had been dispatched to respond to a report of a possible impaired driver who had been refused service by another bar in the area, arrived in the parking lot at 11:28 PM. They observed only two patrons. They approached Mr. Goodman, asked for his driver’s licence, and engaged him in a brief discussion. Observing indicia of impairment, they asked him to accompany them outside the bar. He went willingly.
[5] Constable Fink, who was the lead investigator, concluded shortly after exiting the bar that he had reasonable grounds to believe Mr. Goodman was impaired. At 11:33 PM, he arrested him, read him his rights to counsel, the approved instrument breath demand, and the police warning. Mr. Goodman handed over the keys to his truck and, at 11:34 PM, Constable Fink radioed for another police unit to assist in impounding it. He called again at 11:41 PM to check when the other unit would arrive and was advised it would be as soon as possible. The other unit finally arrived at 11:54 PM. It had been in southeast Regina when first called and was the only unit available to respond to Constable Fink’s call. Constables Fink and McDonald left with Mr. Goodman at 11:55 PM, driving directly to the police station and arriving at 12:05 AM. Samples of Mr. Goodman’s breath were taken and his blood alcohol concentration was recorded on a certificate of qualified technician.
[7] Constable Fink nonetheless testified that for reasons of officer safety, he could not have left Constable McDonald with Mr. Goodman’s vehicle and taken Mr. Goodman to the police station on his own. More specifically, he said he had become aware of persons who were handcuffed and in the back seat having crawled through the silent patrolman window and escaped. He said he would not risk his or his partner’s safety despite Mr. Goodman’s age and demeanour, and that he treated all detainees the same way. He also explained that the Goodman vehicle could not be left unattended, as the police might be liable for damages if anything was stolen or the vehicle was damaged. Further, he said that as Mr. Goodman had been arrested for impaired driving, the police were required by provincial law to impound the vehicle.
[9] Neither officer testified that there were safety concerns with leaving one officer behind in the parking lot or the nearly empty bar to wait for the second police unit.
[10] The Trial judge did not agree that impoundment was required by provincial law, noting that s. 148(3)(c) of The Traffic Safety Act, SS 2004, c T-18.1, provides for either impoundment or immobilization. However, he found “no fault in the police officers choosing to impound the vehicle” in this case, despite finding that immobilization may have been an option. He referred to the fact the police building was ten minutes away and, given that the vehicle was parked outside a bar at midnight, there was a possibility of something untoward happening to it. He noted that the Regina Police Service was, as he put it, “applying additional resources to balance the need to impound and protect the vehicle with the obligation to conduct breath tests as soon as practicable. In brief, a resort to a second police unit is an organizational attempt to comply with the law and respect a detainee’s rights”.
[11] The Trial judge concluded that the second police unit would have been expected to reach the scene within 12 minutes of being called and that, accordingly, the issue arose from the fact that it took 20 minutes rather than 12 minutes to arrive. In his view, the issue was with the additional eight minutes that passed while awaiting its arrival. The Trial judge found it was reasonable for Constable Fink to wait for that additional eight minutes, as he had been told at 11:41 PM that the second unit was coming.
Summary Conviction Appeal
[15] The Appeal judge next dealt with the way the Trial judge had framed the issue; that is, was the additional eight-minute delay justified? The Appeal judge appears to have rejected that approach, defining the issue as relating to the entire period during which Mr. Goodman sat handcuffed in the back of the police car at the scene:
[21] At issue is whether, in these circumstances, a delay of 21 minutes at the scene (13 minutes of which were explained above) violated Mr. Goodman’s s. 8 or 9 rights under the Charter.
[18] The Appeal judge concluded that the Trial judge had observed the correct legal principles. He noted that he had canvassed the case law and considered the circumstances. In the result, he found as follows:
[33] Against that backdrop, it was open to the trial judge to come to the conclusion he did. Therefore, this ground of appeal must also be dismissed.
Analysis
[27] The Appeal judge correctly found that the standard of review relating to the application of a legal standard to the facts is correctness. However, he then dismissed this ground of appeal on the basis “it was open to the trial judge to come to the conclusion he did” (at para 33). He reached that conclusion because, in his view, the Trial judge had considered the appropriate legal principles and reached a conclusion after considering all the circumstances.
[28] With respect, this reasoning discloses an error. The Appeal judge did not decide whether the Trial judge was correct by engaging in the necessary de novo analysis. Although he found that the Trial judge correctly identified the legal standard and applied it to the facts, the Appeal judge did not decide whether the Trial judge did so correctly.
[29] Even if he had not so erred, I would be obliged to identify the legal test and apply it to the facts as found by the Trial judge. The legal test – that is, the meaning of “as soon as practicable” in s. 258(1)(c) – was summarized by Ottenbreit J.A. in Prestupa:
[16] The legal meaning of the phrase “as soon as practicable” is well established and was addressed by this Court in Burwell. Therefore, I need not explain it in detail. It simply means the breath samples must be taken within a reasonably prompt time in the circumstances. In other words, the Crown does not need to prove that breath samples were taken as soon as possible to satisfy the “as soon as practicable” requirement (at paras 35, 99, 102, and 119-120): see also R v Singh, 2014 ONCA 293 at para 14, 310 CCC (3d) 285. The upshot of this is that, depending on the circumstances, breath tests can be taken as soon as practicable, even if they could have been taken sooner. The legal test is flexible and grounded in common sense.
[30] This statement of the test was adopted in R v Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 CCC (3d) 489 (Ont CA) at paras 11–12 [Vanderbruggen], on this point, which was cited with approval in Wetzel at paragraph 90. See also Fenske at paras 25–28. In Burwell, Klebuc C.J.S. summarized the reasoning in Vanderbruggen on this point as follows:
[18] …
(a) The phrase “as soon as practicable” means nothing more than that the breath samples be taken within a reasonably prompt time under the circumstances.
(b) Where a demand for breath samples had been made, there is no requirement that the breath tests be taken as soon as possible.
(c) The touchstone for determining whether the breath samples were taken as soon as practicable is whether the police acted reasonably.
(d) The trial judge is to look at the whole chain of events, bearing in mind what occurred within the two-hour limit prescribed by the Criminal Code.
(e) While the Crown is obligated to demonstrate—in all the circumstances—that breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody.
[32] Similarly, I agree with Tochor J.’s comment in R v Kernaz, 2020 SKQB 223 at para 19, 66 MVR (7th) 26, that “whether a 17-minute delay awaiting a tow truck is, or is not, unreasonable, will depend entirely on the facts of each case. In some cases, 17 minutes or more will not be unreasonable; in other cases, 17 minutes or less may be considered unreasonable”.
[34] However, and with the greatest respect, I disagree with the conclusion reached by the Trial judge. He did not find that the Constables were obliged to impound the vehicle. He found he did not have the evidence to do so. Nor did he find that there were reasonable concerns as to damage to or theft from Mr. Goodman’s vehicle. He said only that the possibility that something untoward might happen was greater than in R v Cole, 2015 SKPC 109 [Cole], as Mr. Goodman’s vehicle was parked outside a bar at midnight and the police station was ten minutes away.
[35] Further, the facts in Cole are not a benchmark. There was no evidence that the parking lot was a dangerous place to leave a vehicle, or, for that matter, a police officer, for the brief period necessary to await the arrival of another police unit. Based on the evidence, the bar and the parking lot were very quiet places at the relevant time. Indeed, Constable Fink did not testify that he had concerns about the safety of Mr. Goodman’s vehicle based on an assessment of the circumstances. Rather, it was his evidence that he had followed his invariable practice.
[36] Similarly, the Trial judge did not find that Constable Fink’s claim that he might be in danger if he alone drove Mr. Goodman to the police station was reasonable. Although he commented that “one must be very careful when assessing whether concerns relating to officer safety should be discounted”, he did not find that Mr. Goodman constituted a risk. Rather, he found that Mr. Goodman was an unlikely candidate to attempt to use violence. Based on the evidence, that would appear to be the only available conclusion. To reiterate, the Trial judge made the following comment about the possible separation of the two Constables:
…[T]here may be instances where all the surrounding factors, including the length of delay, compel the separation of the two officers so that detainees can be transported before the second police unit arrives. For example, in the case of Cole, the fact the driver — the drive to the police station was only a couple of blocks and that the police officers knew Mr. Cole may have made separation of the officers reasonable. Yet, it — it is not for me to speculate but to decide the issue on the facts before me. I find that an eight-minute delay in the circumstances was reasonable and it was not incumbent on Constable Fink to leave his partner behind. …
[37] To the extent this passage suggests that the question is whether the circumstances must be such as to “compel” the separation of the Constables, it sets the bar that the Crown must clear too low when there is delay that needs to be explained. The Crown must demonstrate that officer safety concerns were reasonable in these circumstances.
[38] It is also my view that the Trial judge asked the wrong question. The question was not whether an eight-minute delay was justified. The delay from the time Mr. Goodman was secured in the back of the police car to the arrival of the second unit was 21 minutes. That is the delay at issue. It would beg the question to decide that the issue excludes the time that would normally have been expected to pass before a second unit arrived, as it must first be determined whether it was reasonable for both Constables to wait for a tow truck at all.
[39] For these reasons, I conclude that the Crown has not demonstrated that the officers acted reasonably in the circumstances. The explanation offered by the officers for their decision to wait for a second police unit was not satisfactory, as there was insufficient evidence of danger to Mr. Goodman’s vehicle or to either officer to ground that explanation. Cast in terms of the legal test, that means that the breath samples were not taken within a reasonably prompt time in the circumstances. As such, the decision that they were taken as soon as practicable was an error of law.
[40] As a result of the 21-minute delay occasioned by the Constables choosing to wait for a second police unit to arrive, the breath tests were not administered as soon as practicable. Accordingly, the presumption specified in s. 258(1)(c) did not apply and, absent that presumption, the evidence was insufficient to support a conviction.
Conclusion
[41] In the result, I would grant leave to appeal, allow the appeal, set aside Mr. Goodman’s conviction for driving while his blood alcohol content exceeded the legal limit and substitute an acquittal.
R v Brown, 2021 ONSC 3862
[May 28, 2021] Charter s.8 – Strip Search Privacy Precautions [Justice A. J. Goodman]
AUTHOR’S NOTE: A strip search needs to be conducted in a private location. This case turned on whether a bathroom devoid of other people, but with a non-existent door was sufficient. Other lesser factors included lack of adequate notes of the conduct of the search and that the applicant was left completely naked for a short period of time. Defence can use this case to establish that even relatively minor violations can result in exclusion of evidence. In many ways, it was more the cavalier attitude of police in this case than their actual conduct that resulted in the exclusion of evidence in this case.
Overview
[1] The applicant, Orane Brown (“Brown”) is charged with one count of possession for the purpose of trafficking in cocaine, one count of trafficking in cocaine, contrary to the Controlled Drugs and Substances Act, and possession of proceeds of crime as well as two counts of failure to comply with a recognizance, contrary to the Criminal Code. All of these offences are alleged to have occurred on October 6, 2017, in the City of Hamilton.
[2] The applicant seeks an order to exclude certain evidence seized by the police on the basis of a warrantless strip search conducted in an unreasonable manner by the police at the Hamilton Police Central station, pursuant to alleged breaches of s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”).
Facts
[5] On September 14th , 2017, members of the Hamilton Police Service began conducting surveillance on 1 Gordon Street, in the city of Hamilton, in relation to an ongoing drug investigation. The applicant was the target of the investigation. On October 6, 2017, Hamilton Police obtained a search warrant for 1 Gordon Street, Apartment B. At approximately 2:20 p.m., the applicant was arrested by members of the Hamilton Police Service outside the residence of 1 Gordon Street. Police allege the applicant conducted a hand-to-hand transaction immediately prior to his arrest. On arrest, police located $1860 in Canadian currency. Upon execution of the search warrant, 16.02 grams of crack cocaine were located in a bedroom dresser within the residence.
[6] Following the applicant’s arrest, he was transported to the Hamilton Police Station by Police Constable Kalmats (“Kalmats”). Prior to placing the applicant in the police cruiser, Kalmats conducted a search of Brown’s pockets, as well as a general pat-down search of his person. No clothing was removed during this search. Nothing of evidentiary value was yielded.
[7] The applicant arrived at the station at 3:26 p.m. At 3:41 p.m., Kalmats conducted another search of Brown. This search did not constitute a strip search. At 3:47 p.m., Kalmats and PC Glanfield (“Glanfield”) assisted in conducting a strip search of Brown in the shower area of the holding cells.
[8] During the strip search, all of the applicant’s articles of clothing were removed and he was completely naked, albeit for a brief time. Kalmats and Glanfield observed the search from inside of the shower room the strip search was conducted. The door to the room remained open or was nonexistent while the applicant was strip searched. Neither search yielded any results. There were no video recordings.
Charter s.8: Strip Searches
[13] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[14] While the accused bears the onus of establishing standing to raise a s. 8 issue, warrantless searchesare presumptively unreasonable and, as such, the onus shifts to the Crown to establish on a balanceof probabilities that the strip search was authorized by law; and the manner of search wasreasonable. In other words, the onus is on the Crown to rebut the presumption of unreasonableness.
[15] In the seminal case of R. v. Golden, 2001 SCC 83, [2001] 1 S.C.R. 679, a strip search is defined as theremoval or rearrangement of some or all of the clothing of a person so as to permit a visualinspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female),or undergarments. Once it is determined that a strip search has occurred, the Crown has theburden of justifying its legality as it is a warrantless search. Strip searches incident to arrest areconstitutionally valid at common law where they are conducted as an incident to lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reasonfor the arrest. The Crown must establish that the police had reasonable and probable groundsjustifying the arrest. It is also necessary that the strip search be conducted in a manner that does notinfringe s. 8 of the Charter.
[16] In Golden, at para. 101, the Supreme Court of Canada provided a list of considerations in decidinghow to conduct a strip search incident to arrest:
- Can the strip search be conducted at the police station and, if not, why not?
- Will the strip search be conducted in a manner that ensures the health and safety of all involved?
- Will the strip search be authorized by a police officer acting in a supervisory capacity?
- Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as theindividual being searched?
- Will the number of police officers involved in the search be no more than is reasonably necessary inthe circumstances?
- What is the minimum amount of force necessary to conduct the strip search?
- Will the strip search be carried out in a private area such that no one other than the individualsengaged in the search can observe the search?
- 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?
- Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas withoutany physical contact?
- If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not includingthe mouth), will the detainee be given the option of removing the object himself or of having theobject removed by a trained medical professional?
- Will a proper record be kept of the reasons for and the manner in which the strip search wasconducted?
Application of the Principles
[17] At the time of the applicant’s arrest, the Hamilton Police Service had a Strip Search Policy in place directing how strip searches are to be conducted. The policy dictates that strip searches are to be conducted in a manner that interferes as little as possible with the privacy and dignity of the person being searched. Searches are to be conducted in a room or private area that is not equipped with video capabilities, and if a window exists, the window to the room must be covered. The policy further directs that prisoners shall be asked to remove one article of clothing at a time, the article of clothing is to be inspected, and after inspection, the prisoner shall be permitted to replace each article of clothing. The policy explicitly states that these searches shall not involve the removal of more articles of clothing than necessary, and that prisoner should not be left naked after a search. Furthermore, the policy directs that all strip searches are to be properly documented in the officer’s notebook, as well as in the Detention Log and in an Incident Report. The report shall detail grounds for the search, details surrounding the manner in which the search was conducted, and the name of the supervisor authorizing the search.
[18] In this case, while some facets of the policy or the direction from Golden were followed, some aspects were not. Despite the Crown’s assertions to the contrary, there was no cogent or proper record or log made of the search, or at least presented in evidence before me. The shower area was not private or fully secured from view. There was the possibility of traffic, mixed gender, as the search was conducted in the shower area with a hallway nearby and no door (albeit the evidence was confusing in that regard). Further, the applicant was left completely naked for a short period of time, with his clothing not immediately returned to him.
[19] The lack of details surrounding the strip search in this case is remarkable. The Crown did not call the police officer who actually supervised or directed the search.
[20] A flagrant breach of a police policy does not, per se, necessarily amount to a breach of the Charter. However, in this case, the failure to follow the procedures outlined by the Supreme Court in Golden at its progeny, especially as it pertains to the location, privacy and manner of the search amounts to a Charter violation.
[21] I find that the applicant’s s. 8 Charter rights were breached as a result of the manner in which the strip search was conducted in the circumstances of this case. I now turn to relief being sought by the applicant pursuant to s. 24(2) and 24(1) of the Charter.
Charter s.24(2) Analysis:
Seriousness of the Charter-infringing state conduct:
[36] An officer’s subjective belief that an accused’s rights were not affected does not make the violation less serious unless the belief was reasonable.
[37] Glanfield testified that he merely provided assistance for the strip search. This officer was credible, honest and entirely candid. He conceded various points to counsel in cross-examination. Frankly, he admitted not knowing of the policy until this matter came to trial. He was unable to answer several questions regarding the manner of the search.
[38] Kalmats was the officer who effected the arrest of the applicant, conducted the initial search, provided the grounds to the booking sergeant and was present during the strip search. He, as well, was unable to answer many questions posed by defence counsel. His lack of notes and details of the strip search is disconcerting. Having admitted that there was nothing out of the ordinary, with the suggestions that in his experience strip searches are rare, one would expect some details to be noted and presented in testimony. This was not the case.
[39] In fact, it was readily apparent to me that this officer demonstrated a cavalier and somewhat lackadaisical approach to the entire event. His evidence, notes and recollection are sparse. He did not even know if there was a door to the area where the search was conducted.
[40] Kalmats was also not aware of the policy or of the principles flowing from the relevant case law. I pause to add that had the acts or omission merely have been a breach of police policy, I may not have been persuaded by the applicant. However, I agree with Mr. Miglin. Golden has been the law for almost two decades, and adherence to its principles are well established and adopted by police organizations.
[41] Given Kalmats’ testimony, I am persuaded that the police conduct in this case was deliberate and they adopted a cavalier attitude towards the applicant’s rights. The police actions could be considered flagrant and a lack of good faith. While I accept that these officers were merely present to assist in the strip search, their lack of training, notes or details of the search speaks to the overall approach related to these types of intrusive searches. jurisprudence. In any event, there were no police records filed. I have no evidence from the custody sergeant who actually conducted the search in addressing the fundamental issue of the manner of the strip search or filling in the gaps related to this event.
[42] There is also no cogent evidence documenting the strip search or the filing of a prisoner or custody log related to the strip search process.
[43] The fact that both officers were not aware of the proper procedures, including leaving Brown fully naked, albeit briefly, in the open area of the cell shower, near a hallway leading to the female cells, without calling any other evidence, suggests that the Charter-infringing conduct arose from an unawareness of Charter rights.
[44] The seriousness of the Charter infringing conduct is significant in this case. The case of Golden was released in 2001. This is not an unsettled area of law, and strip searches are a practice commonly performed by the police in the execution of their duties. Further, there was a written policy in place at the time which directed how strip searches are to be conducted. Kalmats testified that he did not know whether it was permissible for an individual to be completely naked during a strip search. Glanfield was not even aware of the policy until this trial.
[45] Frankly, with the officers’ evidence of the rare occurrences of strip searches conducted by the Hamilton Police Service, there is no justifiable excuse for the police officers in this case to not know how to properly conduct a strip search in compliance with the law and their own police policies. It is incumbent on police officers to understand how to perform their duties in a manner that conforms with the law.
[47] In R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, the Court of Appeal stated that thefollowing factors should guide the Court’s approach to the “obtained in a manner” requirement in s.24(2): The approach should be generous, consistent with the purpose of s. 24(2); the courtshould consider the entire chain of events between the accused and the police; the requirementmay be met where the evidence and the Charter breach are part of the same transaction orcourse of conduct; the connection between the evidence and the breach may be causal, temporal,or contextual, or any combination of these three connections; but the connection cannot be eithertoo tenuous or too remote.
[49] The search and recovery of the drugs from the residence was proximate to the strip search of the applicant. No drugs were found on the applicant at the scene. The warrant was being executed on the residence. I do not have the precise timing evidence on this point but the Crown did not dispute Mr. Miglin’s submissions on this very issue. I am satisfied that it was contemporaneous or contextual to the breach.
[50] In sum, the police conduct in this case was deliberate and they adopted a cavalier attitude towards the applicant’s rights. There appears to be a conscious disregard for Charter rights as it pertains to strip searches. This gives rise to a serious breach and the potential for systemic concerns. In my opinion, the admission of this evidence would send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. This factor weighs in favour of exclusion.
Impact of the Violations on the Accused
[53] Strip searches are inherently humiliating and degrading, and as such the strip search in this case had a significant impact on the applicant’s privacy interests. The applicant has a high expectation of privacy in his own body; in fact, it could not be said that one has a higher privacy interest than in one’s own bodily autonomy. In this case, he was subjected to a search which left him completely naked in a room with police officers, with the door open and at least one other officer viewing the applicant from outside or inside the shower room while he was naked. The nearby hallway with easy access led to other cell areas. There can be no greater impact on one’s right to privacy.
Interest in Adjudication on the Merits
[58] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. This is particularly crucial as the drug found in this case is cocaine. It is crystal clear that cocaine is a scourge on society. In this case, it cannot be said that the evidence of the drugs is of marginal value.
[59] The cocaine existed entirely independently of the Charter breach and is considered non-conscriptive evidence. There is no dispute that the illicit drugs found in the residence are of high significance to the prosecution. This is not a case that can be proven by the Crown through other evidence that does not involve a Charter breach. It cannot be said that the evidence is of marginal value.
[61] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided someguidance to trial judges, at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematicalprecision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth- seeking interests of the criminal justice system. Noris the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[62] The community needs to have serious cases tried on their merits, especially where drug-related crimes are committed. On the other hand, the severity of the breaches and the massive impact associated therewith are simply too powerful to ignore. Indeed, I am mindful that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 43.
[63] When considering all of the factors, I am persuaded that the evidence of the drugs ought to beexcluded as its inclusion into evidence would bring the administration of justice into disrepute. I findthat the balancing of all of the s. 24(2) factors militates in favour of exclusion of the evidence.
Conclusion:
[67] Premised on a s.24(2) analysis, in this case, I conclude that the admission into evidence of the cocaine seized by the police would bring the administration of justice into disrepute. The evidence is excluded.
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