The Defence Toolkit – May 31, 2025: Pre-Trial Detention

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Charter 10(b) | Pre-Trial Custody

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Posted On 31 May 2025

This week’s top three summaries: R v JW, 2025 SCC 16: pre-trial #custody, R v Folk, 2025 ONSC 3052:s.10(b) #choice, R v SC, 2025 ONSC 1887: s.8 YO strip #search

R v JW, 2025 SCC 16

[May 23, 2025] Pre-Trial Custody Credit: Wrongful Actions Causing no Enhanced Credit, Adjustment of Sentence for Rehabilitative Treatment [Reasons by Rowe J. with Wagner C.J., Karakatsanis, Côté, Martin, Kaiser, Jamal, O’Bonsawin, and Moreau JJ. concurring]

AUTHOR’S NOTE: This case offers two important clarifications on sentencing principles, particularly useful for defence counsel arguing for fairness in the treatment of pre-sentence custody and in tailoring sentences to the individual offender:

🔹 1. Enhanced Credit for Pre-Trial Custody:

Key Point:

Delays attributable to the accused do not automatically disqualify them from enhanced credit (up to 1.5:1 under s. 719(3.1) of the Criminal Code).

Legal Threshold:

To deny enhanced credit, the Crown must prove that the accused engaged in wrongful conduct intended to delay or abuse the system—a high threshold.

Indecision about pleading guilty is not enough to be considered “wrongful conduct”. Enhanced credit remains the default, and denial of that credit must be justified by clear and purposeful conduct frustrating the court process.

🔹 2. Sentence Length & Rehabilitative Treatment:

Key Point:

While courts can adjust sentence length to promote access to rehabilitative programming (e.g., treatment eligibility), that sentence must still fall within the appropriate range for the offence and the offender.

A sentence cannot be artificially lengthened or shortened solely to meet institutional program thresholds.
Doing so would amount to an error in principle and would compromise the proportionality requirement under s. 718.1 of the Criminal Code.

Rehabilitation is a legitimate objective, but it cannot override the primary principles of proportionality and parity.

I. Overview

[1] In this appeal, the Court is called on to provide guidance as to how programming and treatment aimed at rehabilitating an offender can properly be considered in arriving at a fit sentence. When there is a sufficient evidentiary basis on the availability and accessibility of institutional programming, it is not an error in principle to consider an offender’s anticipated time to complete it as a factor in the individualized sentencing process, provided that the sentence arrived at is proportionate to the gravity of the offence and the degree of responsibility of the offender. In assessing the fitness of sentences, we should bear in mind that proportionality often gives rise to a range of sentences, rather than a single “correct” result (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 48, citing R. v. Muise (1994), 94 C.C.C. (3d) 119 (N.S.C.A.), at pp. 123-24; see also R. v. Hills, 2023 SCC 2, at para. 64; R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 85; C. C. Ruby, Sentencing (10th ed. 2020), at §2.5).

[2] The parties also ask this Court to clarify the meaning of “wrongful conduct” as contemplated in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 48, in particular whether an offender’s pre-trial or pre-sentence delays can constitute wrongful conduct so as to disqualify the offender from pre-sentence custody credit under s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). I will address this question by reference to the circumstances of this case, without seeking to provide a comprehensive definition of such “wrongful conduct”.

[3]… I conclude that the sentencing judge erred in denying to the appellant, on the basis of “wrongful conduct”, enhanced credit for time spent confined in a mental health facility.

II. Factual Background

[4] The appellant pleaded guilty to the following offences: sexual assault, contrary to s. 271 of the Code, threatening to cause death, contrary to s. 264.1(1)(a), and unlawful confinement, contrary to s. 279(2).

B. Pre-Sentencing Procedural History

[10] The appellant was detained between his arrest on May 27, 2018 and his sentencing on April 14, 2022.

[11] Following his arrest, the appellant was remanded to a detention centre. In November 2018, the appellant pled guilty to the offences and a Gladue report was ordered. However, the appellant denied committing the offences in his Gladue report. In March 2019, the appellant’s guilty plea was struck and his first counsel was removed from the record.

[12] A second plea and sentencing date was scheduled in early September 2019, but the appellant later resiled from the proposed resolution. A further resolution date was set in December 2019, but this resolution also did not proceed as the appellant later discharged his second counsel.

[13] In August 2020, the appellant’s third counsel raised concerns about the appellant’s fitness to stand trial. A fitness assessment was ordered by the presiding judge and conducted by a forensic psychiatrist, who recommended that the appellant be admitted to the hospital for a 30-day assessment. This assessment was ordered in September 2020. The appellant was admitted to a mental health facility, Providence Care Hospital (“Providence”), where he was assessed by a psychiatrist and diagnosed with disorganized schizophrenia.

[14] In January 2021, the appellant was found unfit to stand trial. He returned to Providence under a treatment order. After being found fit to stand trial in May 2021, a “keep fit” order was made under s. 672.29 of the Code and the appellant remained at Providence.

[16] On November 26, 2021, the appellant pled guilty to the three offences noted above. He remained detained at Providence while he awaited sentencing. The appellant’s sentencing hearing was held on March 8, 2022; he was sentenced on April 14, 2022.

[17] Prior to sentencing, the appellant had spent 812 days in detention centres and 607 days at Providence, a total of 1,419 days.

[30] Regarding the appellant’s request for enhanced credit, Aitken J. declined to include the time spent at Providence. She concluded that neither the quantitative nor qualitative rationales for granting enhanced credit, as set out by this Court in Summers, had been made out for the time spent at Providence. The appellant’s lengthy time in pre-sentence custody “was due in great measure to his frequently changing his mind and changing his lawyers”; this disqualified him from being granted enhanced credit on the quantitative basis (para. 46). Aitken J. also found that the conditions of detention at Providence were favourable for the appellant; his mental health and behaviour improved during this time. Therefore, she concluded, there was no qualitative basis for granting enhanced credit.

[31] Aitken J. sentenced the appellant to 9 years’ imprisonment, less an enhanced credit of 1,792 days, which was made up of the days the appellant spent in detention centres, credited at a rate of 1.5:1, and the days he spent at Providence, credited at a rate of 1:1. Overall, this left 4 years to be served in a federal institution.

B. Ontario Court of Appeal, 2023 ONCA 552 (Hourigan, Brown and Monahan JJ.A.)

[34] With respect to enhanced credit, Hourigan J.A. deferred to the sentencing judge’s assessment. Given the evidentiary basis, it was open to the sentencing judge to conclude that that appellant’s pre-sentencing conduct was “wrongful” (para. 24). Likewise, there was an evidentiary basis to find that the appellant’s conditions of detention at Providence compared favourably to those in a correctional facility (para. 26). Hourigan J.A. concluded that the sentencing judge had properly exercised her discretion in denying the appellant enhanced credit for his time at Providence.

V. Analysis

C. Did the Sentencing Judge Err in Principle?

(1) Consideration of Treatment and Programming

[58] In determining a sentence within the range determined by such an individualized approach, a judge may have regard to considerations such as treatment and programming aimed at rehabilitation, subject to evidence of availability and accessibility. Rehabilitation “must be designed with the specific offender in mind”; it is best advanced by “appropriate treatment and/or punishment aimed at reintegration and future success” (R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 82). Thus, to the extent that the sentencing judge has regard to such considerations as relevant factors in determining a fit sentence, within a proportionate range, there is no error in principle. [Emphasis by PJM]

[59] The situation is different where a sentencing judge fixes a sentence beyond the appropriate range by having sole regard to anticipated programming time (R. v. Legere (1995), 22 O.R. (3d) 89 (C.A.), at para. 38, citing R. v. Veen (No. 2) (1988), 33 A. Crim. R. 230 (H.C.), at p. 235; see also R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, at para. 41). Such an approach would fail to give effect to the principle of proportionality; it would amount to preventative detention, which is generally not contemplated by Part XXII of the Code (see R. v. Keefe (1978), 44 C.C.C. (2d) 193 (Ont. C.A.), at p. 199; Legere).

[60] It is “one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence” (Legere, at p. 101 (emphasis added), citing Veen, at p. 235). As explained above, having regard to the protection of society as a factor aligns with the purposes, objectives, and principles of sentencing. That said, a judge cannot overemphasize this purpose to the exclusion of other relevant and applicable considerations when crafting a fit sentence (Spilman, at para. 40). As Arbour J. observed in R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780:

There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done. [para. 16]

[61] There are limited exceptions to the foregoing, notably the dangerous offender and long-term offender scheme in Part XXIV of the Code….

[71] As explained above, it would be an error in principle for a sentencing judge to extend a sentence beyond the appropriate range (determined by reference to proportionality) as a result of anticipated programming time (Legere, at p. 101, citing Veen, at p. 235). However, where a judge seeks to craft a sentence within the appropriate range, they may have regard to such considerations. In this case, Aitken J. did the latter.

D. Assessment of Enhanced Credit

(2) Whether Delay Caused by the Offender Constitutes “Wrongful Conduct”

[87] In Summers, Karakatsanis J. explained that, in certain situations, enhanced credit will “often be inappropriate” (para. 48). Notably, “when long periods of presentence detention are attributable to the wrongful conduct of the offender” (para. 48) or “when detention was a result of the offender’s bad conduct” (para. 71), the offender will likely not be granted enhanced credit.

[92] Moreover, what constitutes wrongful conduct needs to be consistent with the purpose, objectives and principles of sentencing, as s. 719(3) and s. 719(3.1) are part of the overall sentencing scheme (Summers, at para. 59). Giving “wrongful conduct” too broad a scope risks undermining the principle of proportionality. Individuals who are denied enhanced credit on the basis of wrongful conduct will be subject to an extended period of incarceration for a reason unrelated to “the gravity of the offence and the degree of responsibility” (s. 718.1). Too broad a scope also risks undermining the principle of parity, as an offender’s wrongful conduct would lead to disparity in sentences imposed on “similar offenders for similar offences committed in similar circumstances” (s. 718.2(b); see Summers, at para. 61).(Emphasis added by PJM)

[93] Thus, in circumstances where the offender has acted so as to delay proceedings, this in and of itself is not sufficient to constitute wrongful conduct. For example, where pre-sentence delay was caused by an offender’s indecision on whether to plead guilty, this cannot be said to be wrongful (see Carvery, at paras. 19-20).(Emphasis added by PJM)

[94] However, where such acts are done with an intention to frustrate the proper operation of the system of criminal justice, they would constitute wrongful conduct….(Emphasis added by PJM)

[96] It is beyond question that exercising one’s lawful rights is, in and of itself, not wrongful. Causing delay, e.g., by dismissing counsel, choosing not to plead guilty, or raising Charter motions, is not wrongful conduct per se. But such actions become wrongful conduct where an offender demonstrates an intention to frustrate or undermine the proper processes in the criminal justice system.

[97] For example, in R. v. Codina, 2019 ONCA 986, the Court of Appeal for Ontario upheld the sentencing judge’s refusal to grant enhanced credit because the appellant had significantly delayed her trial by bringing numerous motions and applications (para. 3). The applications included, inter alia, jurisdictional and constitutional challenges (R. v. Codina #1, 2017 ONSC 7162, 56 Imm. L.R. (4th) 43; R. v. Codina, 2017 ONSC 7315, 408 C.R.R. (2d) 1), Charter challenges (R. v. Codina #3, 2017 ONSC 7561), a motion for a directed verdict (R. v. Codina #6, 2017 ONSC 7648), a s. 11(b) Charter motion (R. v. Codina, 2017 ONSC 4886), and an adjournment request (R. v. Codina #7, 2018 ONSC 1096, 57 Imm. L.R. (4th) 175). At sentencing, the judge described Ms. Codina’s applications as being “entirely without merit” and that she was “repeatedly trying to litigate matters that had already been decided” (R. v. Codina #8, 2018 ONSC 2180, at para. 173). Based on this, the sentencing judge denied Ms. Codina enhanced credit.

[98] Ms. Codina’s intention to frustrate the operation of the justice system was evident through the numerous frivolous applications she raised throughout her trial, resulting in long periods of delay. Codina is an example of how an accused’s exercise of Charter rights can, in exceptional circumstances, constitute wrongful conduct in the context of enhanced credit. The determination of whether there was wrongful conduct is to be made on a case-by-case basis. As to the onus of proof, per this Court’s guidance in Summers, there is not an automatic right to enhanced credit (para. 75). Rather, the onus is on the offender (para. 79). That said, generally speaking, the fact that presentence confinement has occurred will “be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit” (paras. 79).(Emphasis added by PJM)

[99] When this has been shown, the onus shifts to the Crown (Summers, at para. 79) to show that the offender has engaged in wrongful conduct. It will be open to the Crown to demonstrate other grounds for withholding enhanced credit, including that the accused is a particularly dangerous offender who has “committed certain serious offences for whom early release and parole are simply not available” or that the “the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole” (para. 79). Throughout the process, sentencing judges must bear in mind that “[e]xtensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process” (para. 79).(Emphasis added by PJM)

[101]….where an appellate court reviews a sentencing judge’s decision to award or deny, enhanced credit, they are to do so applying the standard of review for sentencing (see R. v. Assiniboine, 2016 MBCA 44, 326 Man. R. (2d) 282, at para. 30; R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at para. 9).

(4) Application

[106]….as noted, the appellant was denied this enhanced credit by the sentencing judge based on wrongful conduct. The sentencing judge concluded that “most of the reasons for delay were caused by or initiated by” the appellant (at para. 10), as he was “frequently changing his mind and changing his lawyers” (para. 46).

[107] While the sentencing judge accurately observed that the appellant’s conduct led to delays in his proceedings, she did not turn her mind to whether such conduct was wrongful. In my view, the sentencing judge erred in her assessment by failing to have regard to a relevant factor, that being the appellant’s mental health during his committal period. The evidence indicates that the appellant’s conduct prior to being found unfit was a consequence, entirely or to a significant degree, of his mental and cognitive state.(Emphasis added by PJM)

[108] As noted above, the Gladue report and pre-sentence reports both describe the appellant’s long-standing history of mental health challenges. In addition, there was evidence from the forensic psychiatrist who prepared the appellant’s fitness report that the appellant’s case “has taken longer because he has gone through several lawyers” and that this “was because of his untreated psychotic mental state” (A.R. Supp., at p. 8).Upon being deemed unfit and transferred to Providence for treatment, “things settled down” for the appellant (p. 8). He was able to retain and instruct his fourth and final counsel, so as to move towards the disposition of his case (p. 8).(Emphasis added by PJM)

[109] The sentencing judge failed to have proper regard to the foregoing when considering whether the appellant’s actions intentionally frustrated the proper operation of the system of criminal justice. In light of this, I would conclude that the appellant’s actions, while having caused significant delays, did not constitute wrongful conduct that would disqualify him from enhanced credit.(Emphasis added by PJM)

[110] Accordingly, I would vary the sentence to give the appellant enhanced credit at a rate of 1.5:1 for the 607 days that he was at Providence. Accounting for the revised calculations by the Court of Appeal, this amounts to an additional 304 days of enhanced credit.

[111] Given that there is a sufficient basis to grant Summers credit based on the quantitative rationale (paras. 71 and 79), it is therefore unnecessary for me to address whether the qualitative rationale applies in this case. On that point, I would say only that while conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment. As stated in Summers, “[i]ncarceration at any stage of the criminal process is a denial of an accused’s liberty” (para. 49, citing Rezaie, at p. 104).

[112] For the foregoing reasons, I would allow the appeal in part and award the appellant 304 days of credit against the sentence imposed, in addition to the credit awarded by the Court of Appeal.

R v Folk, 2025 ONSC 3052

[May 22, 2025] Charter s.10(b): Access to Counsel of Choice [Justice J. R. Henderson]

AUTHOR’S NOTE: This case offers a valuable and nuanced application of s. 10(b) of the Charter—the right to counsel—while providing an instructive distinction from R v Willier. It reinforces key principles that defence counsel can rely on when arguing a breach, especially in cases where access to counsel of choice is delayed or denied.

🔹 Key Takeaways:

1. Contact with Duty Counsel ≠ End of s.10(b) Obligations

The accused spoke with duty counsel and did not express dissatisfaction, but still wanted to speak with their counsel of choice.
Importantly, exercising the right in part (by speaking with duty counsel) does not extinguish the continued right to consult preferred counsel if the opportunity remains viable.

2. Police Conduct Created a Reasonable Expectation

The facts indicated it was reasonable for the accused to expect they would be able to speak with their counsel of choice the next morning.
By initiating questioning before that occurred, police interfered with that expectation, constituting a breach of s.10(b).

This aligns with the common sense, contextual approach to s.10(b) rights endorsed in post-Willier jurisprudence: the right to counsel includes a meaningful opportunity to access counsel of choice, not just any counsel.

🔹 How it Differs from R v Willier:

In Willier, the Court found no breach where the accused failed to express dissatisfaction with duty counsel and did not pursue further contact with their chosen lawyer.
🔁 Here, by contrast, ongoing interest in speaking with counsel of choice was known, and the police interrupted that process—which became the basis for the breach.

INTRODUCTION

[1] The defendant, Jeremy Folk, is charged with manslaughter with respect to the death of Robert Davies (“Davies”). The Crown submits that, on June 13, 2020, the defendant sold a substance, purportedly cocaine, to Matt Grout (“Grout”), and that the substance was ingested by Grout, Davies, and Sheldon Gittens. Davies died as a result. It is alleged that the substance that was sold by the defendant to Grout was in fact a mixture of cocaine and fentanyl.

[2] The Crown brings this pretrial application for a ruling that the videorecorded statement given by the defendant to Detective Allan of the Brantford Police Service (“BPS”) on September 15, 2020, was voluntary, and that the statement is therefore admissible as evidence at the trial.

[3] The defendant takes the position, supported by amicus, that the statement is not admissible. The defendant submits that the statement was not voluntary because it was given under oppressive circumstances, Detective Allan made threats or offered inducements to the defendant, and the statement was not the product of the defendant’s operating mind.

[5] In addition, the defendant brings an application under s.10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) in which the defendant alleges that the police officers failed to provide the defendant with a reasonable opportunity to speak with counsel of choice before he provided the videorecorded statement. Therefore, the defendant submits that if the statement is otherwise admissible, it should be excluded from evidence pursuant to s.10(b) and s.24(2) of the Charter.

Section 10(b) of the Charter

[75] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29, the court enumerated these duties as follows:

Section 10(b) requires the police

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[76] In many cases, a detainee requests to speak to a particular lawyer, but counsel of choice is not readily available. In that respect, the court in Willier wrote, at para. 35:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation.

[77] There are certain basic principles that arise out of the case law:

– The onus is on the defendant to prove on a balance of probabilities that there has been a breach of the defendant’s Charter rights and that the evidence should be excluded under s.24(2): see R. v. Collins, [1987] 1 S.C.R. 265.

– Upon arrest or detention, a detainee must be informed by police officers of his right to retain and instruct counsel without delay. The police officer must also inform the detainee that a Legal Aid duty counsel is available to speak to him if he wishes: see Willier, at para. 29; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 18; and R. v. Brydges, [1990] 1 S.C.R. 190, at paras. 24-26.

– The s.10(b) right includes not only the right to retain and instruct counsel, but the right to retain and instruct counsel of choice: see R. v. Speid, 43 O.R. (2d) 596 (C.A.); R. v. Ross, [1989] 1 S.C.R. 3, at para. 13.

– If the detainee, having been informed of his rights, indicates to the police that he wishes to speak with a lawyer, the police have an obligation to take reasonable steps to put the detainee in contact with his counsel of choice, and provide the detainee with a reasonable opportunity to exercise his right to speak to counsel of choice: see Willier, at para. 29; R. v. Manninen, [1987] 1 S.C.R. 1233, at paras. 21-23; and Ross, at paras. 11-15.

– There is an obligation on the police to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he has had a reasonable opportunity to speak with counsel: see Willier, at paras. 29-30; Manninen, at para. 23; McCrimmon, at para. 17; and Ross, at para. 17.

– The obligations on the police to facilitate contact with counsel and to refrain from eliciting evidence from the detainee are contingent upon a detainee’s reasonable diligence in exercising his right to counsel: see Willier, at para. 33; Ross, at para. 13, and R. v. Tremblay, [1987] 2 S.C.R. 435, at para. 9.

– If a detainee’s counsel of choice is not readily available, the detainee has the right to wait a reasonable amount of time for his lawyer of choice to respond. It is only if the counsel of choice cannot be available within a reasonable time that the detainee will be expected to contact another lawyer: see Willier, at para. 29; Ross, at para. 13.

– A detainee may choose to forego his right to wait for an opportunity to speak with counsel of choice in favour of exercising his rights by speaking with duty counsel: see Willier, at para. 42; McCrimmon, at para. 19; and R. v. Jhite, 2021 ONSC 3036, at para. 42.

– If a detainee attempts to contact counsel of choice who is not readily available, and subsequently chooses to speak with duty counsel, the detainee does not implicitly waive his right to speak to counsel of choice. The onus is on the Crown to show that the detainee has waived his right to counsel of choice: see R. v. Singh, 2020 ONSC 1342, at paras. 19-20; R. v. Vernon, 2015 ONSC 3943, at para. 32.

– A police officer may still be obliged to provide the detainee with a reasonable opportunity to contact counsel of choice after the detainee has spoken to duty counsel. The availability of duty counsel cannot be used to trump a detainee’s right to counsel of choice: see R. v. Kumarasamy, [2002] O.J. No. 303, at para. 21.

– The police are not required to monitor the quality of the legal advice provided to a detainee. If a detainee opts to speak to duty counsel when his own lawyer is not available and the detainee does not indicate that the advice received was inadequate, the police may assume that the detainee is satisfied with his exercise of right to counsel and are entitled to commence an investigative interview: see Willier, at para. 42; McCrimmon, at para. 19.

[78] In my opinion, the apparent contradiction in some of the above-mentioned decisions is explained by noting that the onus is on the Crown to show that the detainee has waived his right to speak to a specific counsel by speaking with duty counsel, but the police may draw certain inferences based on the conduct of the detainee.

[82] I find that the defendant in this case did not waive his right to speak to counsel of choice by choosing to speak to duty counsel. The circumstances of this case are unlike those in Willier where the detainee chose to speak to duty counsel instead of his own lawyer who was not available, and thereafter expressed satisfaction with the advice provided. In the present case, although he did not express dissatisfaction with advice provided by duty counsel, the defendant made it clear that he still wished to speak with his counsel of choice.(Emphasis added by PJM)

[83] I find that both Sergeant Spencer and Officer Santamaria were aware that the defendant did not choose to accept a conversation with duty counsel as an alternative to speaking with his counsel of choice. Shortly after the defendant’s conversation with duty counsel, he informed the officers that he still wished to speak with Dale Henderson. Officer Santamaria then properly made another attempt to arrange for the defendant to contact his counsel of choice by calling Dale Henderson’s office and leaving a message on his voicemail at 6:09 p.m. He then properly informed the defendant that he had done so.

[84] Thereafter, I find that the police officers and the defendant reasonably believed that Dale Henderson would contact the police station to speak with the defendant the next morning between 8:00 a.m. and 9:00 a.m.

[85] In my view, as of 6:09 p.m., the defendant had not waived his right to speak to counsel of choice, and therefore the police continued to have a duty to wait a reasonable length of time to provide the defendant with an opportunity to speak with counsel of choice prior to interviewing the defendant. Moreover, the officers, by their actions, led the defendant to believe that he would be able to speak to his lawyer the next morning.

[87] I find that it was reasonable to expect the police officers to wait. The reasonableness of waiting until the next morning to interview the defendant is evidenced by the fact that the police officers did wait until the next morning to conduct an interview. After Officer Santamaria left a message for Dale Henderson at 6:09 p.m., the police officers and the defendant believed that Dale Henderson would call to speak to the defendant the next morning. The BPS police officers then collectively waited 14 hours, until approximately 8:00 a.m., before Detective Allan decided to interview the defendant.

[88] At the time of Detective Allan’s interview of the defendant, the situation had not changed. The officers who had been involved with the defendant on the previous evening believed that Dale Henderson would be calling to speak to the defendant that morning. I accept that Detective Allan was not aware of this fact, but other BPS police officers were aware of the circumstances, and the attempts to contact counsel on the previous evening had been recorded in the BPS custody module. The information was readily available to Detective Allan had he chosen to look for it.

[90] In coming to that conclusion, I have also taken into account the fact that there was no urgency to interview the defendant. Again, this is evidenced by the fact that the officers waited 14 hours before they interviewed him. This was not a situation in which it was important for the officers to interview the defendant before a certain time or date. I find that this is a very different situation than the cases in which a defendant wished to speak with counsel of choice before providing a breath sample.

[91] Still further, in the present case I find that at approximately 7:20 p.m. the defendant was considering contacting another lawyer, Jaime Stevenson, but decided not to do so because he believed that Dale Henderson would be contacting him in the morning. This confirms that the defendant had been led to believe that the officers were prepared to wait for Dale Henderson to contact the defendant in the morning. The defendant relied on this belief in deciding not to contact an alternate lawyer that evening.

Should the Statement be Excluded under Section 24(2)?

[96] In this case, I find that the conduct of the police was neither trivial nor egregious. For the most part, the police officers followed the appropriate protocol. Sergeant Spencer and Officer Santamaria dealt with the situation in the proper manner. The difficulty is that the circumstances were not communicated to Detective Allan.

[98]…In summary, I find that the seriousness of the Charter-infringing conduct falls in the modest range.

[99] Regarding the impact of the breach on the Charter-protected interests of the accused, the right of a detainee to retain and instruct counsel of choice is a basic right enshrined in the Charter. It is trite to say that the right to counsel is an important right. Further, the right to counsel is a straightforward, simple right, the scope of which should have been known to the officers and the breach of which is difficult to excuse or understand.

[101]…I find that the impact of the breach on the Charter-protected interests of the accused was serious.

[102] Regarding the third Grant factor, I acknowledge that society’s interest in adjudication on the merits will almost always favour admission of the evidence. However, in this case, the inadmissibility of the evidence will not mean that the case against the defendant cannot be tried. This case will proceed to trial on other admissible evidence.

[103] Further, in my view, members of the public would be justifiably concerned about the administration of justice if police officers were permitted to obtain self incriminating evidence from an accused person as they did in this case. Society’s confidence in the justice system will be lessened if officers are permitted to take a person into custody, assist the person in arranging to speak to his lawyer the next morning between 8:00 a.m. and 9:00 a.m., and then, just after 8:00 a.m., compel the person to provide a statement before he has a chance to speak to his lawyer.

[104] All three of the Grant factors tend to favour exclusion of the evidence. Accordingly, I hereby find that the statement given by the defendant to police on September 15, 2020, is not admissible at the trial.

CONCLUSION

[105] For the above-mentioned reasons, I find that there was a breach of the defendant’s s.10(b) right as he was not provided with a reasonable opportunity in the circumstances to speak with his counsel of choice. I also find that the statement given by the defendant to police on September 15, 2020, should be excluded from the trial.

R v SC, 2025 ONSC 1887

[May 15, 2025] Charter s.8: Routine Strip Searches of Young Persons [Justice P. Campbell]

AUTHOR’S NOTE: This case marks an important development in the ongoing balancing act between institutional security and individual Charter rights in the custodial setting—particularly for young persons. Justice Campbell’s ruling reinforces the principle that Charter rights do not stop at the prison gates, and affirms the dignity and privacy interests of young people in detention.

🔹 Key Principles:

1. Reduced But Not Extinguished Privacy

The decision reiterates that s. 8 of the Charter (unreasonable search and seizure) continues to apply in custodial contexts.
While there is a reduced expectation of privacy in prison, that does not grant authorities carte blanche.
Strip searches—especially routine ones without individualized suspicion—are highly invasive and must be strictly justified.

🔹 2. Unique Considerations for Young Persons

Justice Campbell rightly draws a clear boundary when it comes to youth:
- Routine strip searches of young persons are presumptively unreasonable.
- The vulnerability and developmental stage of youth make them particularly sensitive to such intrusions.
- This recognizes both the rehabilitative aims of youth justice and the evolving norms around trauma-informed care.

🔹 3. Broader Rehabilitative Purpose Undermined

The ruling goes beyond legal reasoning and speaks to penal philosophy:
- Prisons must not just deter or punish, but also rehabilitate.
- Humane treatment is essential if individuals—especially young offenders—are to return to society as moral, productive members.
- Dehumanizing practices such as blanket strip searches undermine that purpose.

A. BACKGROUND AND EVIDENCE

(i) History

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

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

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

[6] At the date of this ruling, SC remains on trial for second degree murder with my judgment on the merits of that charge on reserve…

(ii) The Constitutional Claims

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

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

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

[12] The issue of routine strip searches was addressed by Justice Rose of the Ontario Court of Justice in earlier proceedings arising from the events leading to Kenneth Lee’s death. The routine strip searches were considered in determining the sentences of two young persons, AB and MJ, who entered guilty pleas before Justice Rose. They were also considered in an application for stays of proceedings by two other accused girls, JF and SS, in a ruling released on January 28, 2025, which was the subject of submissions before me on the present application. In R. v. J.F., 2025 ONCJ 54, 2025 CarswellOnt 1124, Justice Rose held that the strip searches of these two girls breached their rights under s. 8 of the Charter, but that this breach could be remedied by sentence adjustments rather than through a stay. In that case, the stay was requested following guilty pleas by both applicants to included offences – manslaughter, in the case of JF, and assault with a weapon and assault causing bodily harm, in the case of SS.

[16] SC was placed in a small washroom off the facility’s intake office and given a towel. With the bathroom door closed, she removed her own clothing and wrapped the towel around herself. The officer then opened the door, took out the clothing, searched it, and placed it in a bag.

[17] SC was then directed by the searching officers to position the towel in front of herself and to squat and cough. This procedure is understood to promote the involuntary opening of bodily cavities – the rectum and vagina – where contraband might be secreted.

[18] She was then told to drop the towel to the floor and turn around 360 degrees with her arms extended. With the towel on the floor, she was directed to show the areas behind her ears and inside her mouth, and to shake her hair. After this, she was handed an institutional uniform to wear. She asked for a menstrual pad and one was provided.

[19] SC described feeling “completely disgusted and embarrassed” following the search. She noted, to emphasize how intrusive she felt the search to be, that she would not have allowed even her parents to look at her body in that manner.

[20] SC was strip searched twice more at Sundance, in a similar manner, upon returning from routine court appearances. Her affidavit is unchallenged in its assertion that while at these court appearances, she had travelled alone in a police wagon, been placed in a cell by herself at the courthouse, and remained handcuffed throughout the proceedings.

[21] SC was one of a group of girls flown late at night to the Creighton Youth Services Centre, in Kenora, after their Toronto area facility became suddenly uninhabitable due to flooding. SC was surprised by the routine strip search at Creighton since she was aware of an earlier order from Justice Sirivar forbidding strip searching of another accused girl. She pleaded and argued with the staff at Creighton not to strip search her but was told the only alternative to the search would be isolation in her room and separation from other detainees and from the available programming. She submitted to the search.

[22] SC described the search at Creighton as similar to the ones at Sundance. It included removal of clothing, inspection of the feet, ears, and mouth while SC was in underwear, and then removal of undergarments and provision of a towel. With the towel in front of her, SC was directed to squat and cough, then drop the towel and turn around in a full circle before putting on facility clothing. SC recalled this as the worst of the searches she had experienced because she was able to see that a male manager was just outside the room – though not looking at or paying attention to her.

[24] Dr. Vitopoulos made several other observations in her report and testimony, about SC personally and about the impact of the strip searching of adolescents generally. They included:

Entrance into custody itself is a very difficult and likely traumatizing experience for adolescents, representing a) the abrupt removal from familial and/or primary care setting and caregiver safety and support; b) disruption to daily life; c) as well as exposure to the exertion of control by adult strangers in an unfamiliar environment. Multiple transfers between institutions, some of which were quite far from her family, likely aggravated the already difficult experience of being an adolescent in custody. Early adolescence represents a neurobiologically and psychosocially sensitive period of development (please see expert report for literature summary and references). Thus, [SC] entered a custodial setting and experienced being strip searched during this particularly sensitive period of development.

While [SC], her mother, father, as well as her mental health court worker, all discussed the broader impacts of her custodial experience on her well-being and mental health, [SC] and her mother discussed the specific impacts of the strip searches. [SC] indicated that following her release from custody she had frequent intrusive thoughts, nightmares, and dreams about the searches. She noted that, generally, she tried to avoid thinking about these and any related triggers. However, she explained that often, till this day, reminders of the searches can be triggered by her own body or the act of undressing. She described this as being “disgusted” with herself due to shame associated with the experiences. Both [SC] and her mother reported that [SC]’s relationship to her body changed after custody, noting that she began covering her body in larger clothing to conceal it, whereas she had dressed in a more commonly adolescent and sometimes more revealing manner prior to custody. [SC]’s mother described the strip searches as traumatic, causing [SC] to be “uncomfortable in her own skin,” as well as fearful and paranoid of the searches occurring again while she was in custody. She posited that they have been further disruptive to her sleep on an ongoing basis. Taken together, though [SC] certainly evidences a clear history of long-standing complex PTSD, these particular reported impacts are in keeping with a specific trauma response to the searches.

(ii) The Institutional and Regulatory Context

[36]… Section 68 of the Regulation sets broad standards which implicitly treat strip searches as one form of search permitted by s. 155. It says:

68. A search authorized by a person in charge of a place of open custody, of secure custody or of temporary detention shall be carried out in accordance with the following rules:

1. In no circumstance shall a search involve a body cavity search.

2. All searches shall be conducted in a manner that,

i. respects the dignity of the person being searched and does not subject the person to undue embarrassment or humiliation,

ii. considers the cultural, religious and spiritual beliefs of the person being searched,

iii. respects any personal property or clothing that has cultural, religious or spiritual value to the person being searched, and

iv. respects any personal property so that it will not be wilfully discarded, broken or misplaced.

4. A search that could involve physical contact between the staff member and the person being searched or the removal of some or all clothes, other than outer garments, of the person being searched may only be performed on a young person and the following rules apply to such searches:

i. At least two staff members shall be present for the search.

ii. The young person being searched shall not be searched by a person of the opposite sex unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place, or to the safety or security of the place.

iii. Despite subparagraph ii and unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place or to the safety or security of the place, a trans young person shall have the option of,

A. requesting that the search be conducted by only a male staff member,

B. requesting that the search be conducted by only a female staff member, or

C. requesting that the search be conducted by staff members of both sexes and identifying how each of those persons may perform the search.

[Emphasis added.]

[37] Section 71 compels the head of a custodial facility to ensure staff receive training and education in “the policies and standards established by the Ministry” under the CYFSA.

[38]….The standard directs:

Routine strip searches

The person in charge of the custody/detention facility may authorize that a strip search of a young person be carried out in order to safeguard the security of the facility or the safety of staff or young persons:

 when a young person enters or leaves the facility, other than when the young person is being released from custody

 when a young person leaves an area (such as a kitchen or workshop) where there was a reasonable likelihood of the young person having access to contraband (e.g. items that may not be approved outside of the program area) that is capable of being hidden on or in the body, and all of the following conditions are met:

 a staff member believes on reasonable grounds that the young person is carrying contraband

 the young person refuses, resists or fails to co-operate with the staff member’s request to turn over contraband

 a non-intrusive search has failed to recover contraband

 the person in charge determines that a strip search is necessary to find contraband

[Emphasis added.]

[41] The Standard also contrasts “routine” strip searches with “non-routine strip searches”, which may be conducted at any time, but only in response to a specific belief, based on reasonable grounds, that the young person “is carrying contraband or evidence relating to a criminal offence” and that the young person has declined to turn over the items of concern, that a less intrusive search will not secure the items, that safety is at immediate risk and that a strip search is necessary. These non-routine, event-driven searches, based on reasonable grounds for belief, require written authorization in advance from the person in charge of the facility.

[44] The policy at Sundance in 2023 had a similar threshold for routine searches – upon admission, after re-entry to the facility from an outing, including court, and after a family visit….

(vi) Recommendations and Reforms

[59] In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, the Supreme Court of Canada issued a major judgment on the constitutionality of strip searches by the police following an arrest, finding that such searches, performed without a defined standard and on a routine basis at the police station, violated s. 8 of the Charter and required the exclusion of seized evidence. The Court has not broadened its analysis to address strip searches in custody in the years since. The issue has, however, arisen in other cases and has been the subject of recent reports and recommendations from governmental and advocacy groups. These reports, from which I will quote at some length, have been critical of the regime permitting “routine” strip searches of persons in detention and have urged the adoption of more rigorous standards for conducting such searches, which, they urge, should be based on reasonable grounds to believe the search is necessary and a requirement for supervisory approval.

[60] In 2019, the Office of the Independent Police Review Director (OIPRD) released a report entitled Breaking the Golden Rule: A Review of Police Strip Searches in Ontario, which surveyed the practices and policies of the province’s policing services and made a series of detailed recommendations, which included the following:

17. Every police service in Ontario should ensure that their procedures pertaining to strip searches explicitly set out the threshold preconditions to a valid strip search, with particular emphasis on the requirement that the police must believe, on reasonable and probable grounds, that a strip search is necessary in the particular circumstances of the case either for safety (that is, for the purpose of discovering weapons in the detainee’s possession) or to discover evidence related to the reason for the arrest. …

21. Every police service in Ontario must communicate effectively to their officers, through illustrations informed by existing jurisprudence, what would amount to unlawful routine strip searches. Such communication should form an essential part of officer training. However, such police services would also be well advised to briefly include in their procedures several prominent examples of unlawful strip searches done routinely. These examples might include:

(a) Strip searches inevitably done, regardless of the individual circumstances, based on the nature of the charge(s) (e.g. drug offences) faced by the arrested individual.

(b) Strip searches inevitably done because the arrested individual will be held for a show cause hearing, regardless of whether that individual will be detained or transported with others, and regardless of whether reasonable grounds exist that a strip search is necessary for the safety of that individual or others.

(c) The automatic removal of bras or underwire bras, and string bikini tops, regardless of the individual circumstances.

[61] In 2022, the Ontario Human Rights Commission (OHRC) made a recommendation to the Ontario Solicitor General for the reform of strip searches in adult correctional institutions. The recommendations echoed the call for specific grounds to search and supervisory approval. The OHRC’s submission says:

Strip searches cause harm to all people and cause disproportionate harm to members of Code-protected groups. Given this reality, Ontario’s regulatory framework for strip searches must be premised on minimizing such searches in all instances.

In most if not all cases, this will require that strip searches be conducted only when there are reasonable and probable grounds for such a search. The OHRC is aware that many groups are calling for the elimination of all “routine” strip searches in Ontario’s correctional facilities. The OHRC supports that goal.

To the extent that there are particular situations where Ontario believes that security concerns require strip searches without individualized reasonable and probable grounds, it should demonstrate that need. While courts have acknowledged the unique security needs of correctional facilities, they have also highlighted the overuse of policies that require frequent “routine” strip searches. Given current body scanning technologies that are used to search individuals, and the need to balance security and safety risks with Code and Charter rights, there should not be a “one size fits all” approach on entry into correctional facilities. Strip searches for individual prisoners should never be “routine.”

[62] Two years later, in March 2024, Ontario’s Ombudsman released his Submission to the Ministry of Children, Community and Social Services Regarding Searches of Staff, Visitors and Young Persons at Youth Justice Facilities. Recognizing the constitutional value of minimizing the invasiveness of any permitted search, the Ombudsman characterized strip searches as a “last resort.” His observations continued:

Many Canadian sources highlight the importance of severely limiting the use of strip searches for young people. In R. v. Golden, the Supreme Court of Canada held that strip searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out.” The Court emphasized that “[t]he importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy.” …

In some cases, advances in search technology may eliminate the need for more intrusive types of searches. Full-body security scanning systems can safely scan bodies for external and internal contraband not detected by existing security measures and do not require the person being searched to undress. The province has successfully used these types of scanners for years at some adult correctional facilities. While these types of scanners do not exist at all youth justice facilities, I urge the Ministry to provide specific guidance on how and when body scanning devices should be used as an alternative and less intrusive search method for young people.

Ontario Regulation 155/18 should be amended to specifically provide that strip searches will only be used as a last resort, when all other options to ensure safety and security in a youth justice facility have been exhausted. …[Emphasis added]

[63] Under the heading “Prohibiting routine strip searches” the Submission continues:

The Ministry states that proposed regulatory amendments may outline the circumstances when a strip search of a young person can be conducted, such as during admission to the facility, leaving the facility (e.g. to attend court), and when the young person re-enters the facility and they have not been directly observed by staff at all times. I am concerned that these rules could lead to routine strip searches of young persons, contrary to the Charter.

Under section 8 of the Canadian Charter of Rights and Freedoms, everyone has the right to be secure against unreasonable search or seizure. In considering the scope of the power of police to conduct strip searches, the Supreme Court of Canada has held that “[t]he fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter.” In R. v. A.(Z.), a strip search of a young person was found to have violated section 8 of the Charter because, amongst other things, “the strip search was carried out as a matter of routine policy without regard to the individual circumstances of the youth and the necessity for a strip search in his case.” I encourage the Ministry to prohibit routine strip searches of young persons, such as when they enter or leave facilities, and to state that all searches must be conducted in a manner that has regard to the individual circumstances of the youth and the necessity for a strip search.

[Emphasis added.]

C. THE CONSTITUTIONALITY OF THE STRIP SEARCHES

(i) Summary of Findings

[68] I conclude that s. 8 was violated in the strip searches of the applicants at the Sundance, Craigwood, and Creighton facilities. The violation goes well beyond the manner of search, which required complete nudity, contrary to ministerial policy – a breach conceded by the Crown. It extends to the “routine” performance of strip searches in circumstances where no prior authorization is required and no grounds for belief or suspicion about the need for the search must be held by the staff member performing it. I will explain this finding at length below.(Emphasis added by PJM)

[71] Section 7 of the Charter is invoked in three parts of the applicants’ claim. I conclude, firstly, that the strip searches, performed without specific grounds or any process for advance consideration and approval, deprived the four girls of the security of their persons in a manner that did not accord with the principles of fundamental justice. Second, I conclude that the breadth of the practice, and the failure of senior officials to detect and prevent the harms, did not constitute a violation of s. 7 separate from and in addition to the practice itself. Third, I conclude that the evidence makes out an abuse of process under the “residual category”, calling for a remedy under s. 24(1) of the Charter to preserve the integrity of the justice system. An abuse of process affecting the liberty interests of accused persons is a violation of s. 7.(Emphasis added by PJM)

[72] I will expand on these conclusions, beginning with s. 8.

[77] This recognition that a balance must be struck between the public’s interest in exposing concealed physical objects or unearthing hidden information, and the private interest of every citizen against the “encroachment” by the state on a reasonable expectation of privacy, has been fundamental to the law of search and seizure over the decades since Hunter was decided. Two themes of particular relevance to this case have shaped the law permitting searches and piercing privacy.

[78] The first is the importance of prior authorization for a search—an official, with independence and at some distance from the searches—should, where feasible, assess, in the particular circumstances, the justification for an intrusion on privacy, giving weight to the interests on both sides of the question: Hunter, at pp. 160-161. The Court’s discussion of the warrant requirement includes recognition that the impracticality of obtaining prior authorization may obviate the need for it but that it remains a linchpin of reasonableness, at p. 161:

I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.

[Emphasis added.]

[79] Section 8 is not merely a mechanism for assessing, after the fact, whether an intrusion on privacy took place and evidence obtained as a result should be admitted in court. Its purpose is not to assist defendants in litigation, but to protect the privacy of everyone as they live their lives. Unjustified searches should be stopped before they occur, not criticized and penalized afterward.

[80] A second organizing principle of the law of search and seizure is the minimization of intrusions into privacy, even when they are justified and authorized. A lawful search inside a large, shared building does not permit a search of every office or apartment or even every common area: R. v. Nguyen, 2023 ONCA 367, 426 C.C.C. (3d) 350. Gaining lawful entry to a digital device or to electronic communications for a legitimate police inquiry does not permit access to its entire contents, most of them likely unrelated to the investigation underway but expected by the owner of the device to remain permanently private: R. v. Finlay, 11 O.A.C. 279; R. v. Rogers Communications Partnership, 2016 ONSC 70, 128 O.R. (3d) 692, at paras. 39-45.

[81] These two pillars of a reasonable search – prior authorization of a search where possible and a minimal degree of intrusiveness into a target’s privacy – are captured in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 21-22:

Section 8 of the Charter — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. In addition to the overriding requirement that a reasonable law must authorize the search, this balance is generally achieved in two main ways.

First, the police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant. The prior authorization requirement ensures that, before a search is conducted, a judicial officer is satisfied that the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance the goals of law enforcement: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160. Second, an authorized search must be conducted in a reasonable manner. This ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives. In short, prior authorization prevents unjustified intrusions while the requirement that the search be conducted reasonably limits potential abuse of the authorization to search. [emphasis added]

[82] The law on searches incident to arrest, or searches pursuant to exigent circumstances, demonstrates the constant concern for a permissible search not going beyond the scope of the reason for allowing it: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195 at paras. 103-105; R. v. Caslake, [1998] 1 SCR 51, at paras. 17-19; R. v. Stairs, 2020 ONCA 678, 170 O.R. (3d) 671 at paras. 58-60. This concern is also apparent in the law on interception of private communications and more generally in the Criminal Code’s restrictions on the duration, scope, and targeting of orders permitting wiretaps and similar privacy intrusions. As illustrations, see ss. 184.2(2) and (4); 186(1)(b), (4), (5.2) of the Criminal Code.

[84] There is no question that what one is carrying on one’s person is the subject of a reasonable expectation of privacy – that is why we have a body of law related to the limits of the police search of persons after an arrest. Much of the law related to the subject under discussion, however, draws on the understanding that in some settings and circumstances, what would otherwise be a reasonable expectation of privacy may be “reduced”, “lowered”, or modified. Searches in schools are one example: R. v. Jarvis, 2019 SCC 10, 433 D.L.R. (4th) 195, at para. 73. Searches of one’s luggage and person at a national border are another: R. v. Simmons, [1988] 2 SCR 495, at pp. 526- 529; R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, at paras. 50-54.

[85] Prison or jail is recognized as another setting where a person’s expectation of privacy is reduced. Inmates are persons who have been found guilty of a crime, or about whom reasonable grounds to believe they are guilty of a crime exist. A person’s status as an inmate will shape their reasonable expectation of privacy; inmates cannot reasonably expect that the state can be kept at arm’s length within a facility designed to hold them against their will. Cells will be examined with flashlights – perhaps frequently – and searched for contraband routinely or in response to some perceived concern. Cameras are almost everywhere. Phone calls, other than to counsel, are subject to monitoring. These examples are intrusions into zones where privacy is taken for granted by persons out of custody but which cannot reasonably be expected to remain private in custody, because of the lowered expectation of privacy behind bars.

[86] Still, defining what the expectation of privacy is in respect of a specific kind of search based on the broader setting in which the search occurs is a needlessly blunt and binary way of understanding the issues in this case. Pike, at para. 27, holds that the reduced expectation of privacy, which shapes searches of luggage and containers at the border, cannot justify, by itself, a search of a personal digital device. Students in schools have a reduced expectation of privacy, but images of female students captured for prurient purposes on a camera concealed in a pen, by a teacher, even in common areas of the school, will violate an expectation of privacy: Jarvis at para. 73.

[88] The point to be drawn from this discussion is that it is reductive to resolve a s. 8 claim arising in circumstances of reduced expectations of privacy simply by reference to that reduced expectation. The question that remains in any such case is how far the reduced expectation extends and whether the intrusion complained of falls outside, or remains inside, reasonable expectations.

[98] The Golden reasoning was applied in R. v. Muller, 2014 ONCA 780, 326 O.A.C. 242, at paras. 81-83, where the Court of Appeal for Ontario found a police station strip search to have been a violation of s. 8, noting that “no supervisory authorization was sought, much less obtained.”

[99] The same approach, with the same criteria, has been approved for the taking of penile swabs in R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 78. There is an analogue as well at the border, where s. 98 (2) and (3) of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), permit a person subject to a search to demand a separate assessment of the purported grounds by a senior customs officer.

[100] I take the adoption of the P.A.C.E. approach for police station strip searches in Golden and Muller and for penile swabbing in Saeed, to recognize that if a judicial authorization process (by warrant or telewarrant) is not feasible, internal supervisory authorization has meaningful value in achieving “compliance with the Charter”: Golden at para. 100. This makes sense. A police desk sergeant or a detention centre superintendent or officer in charge lacks some important features of a judge deciding on issuance of a warrant – legal training and judicial independence to name two. But a supervisor is likely to have experience, seniority, good judgment of security risks, appreciation for the psychological toll of strip searches, and a distance from the reactions of the frontline officers contemplating a search. At a minimum, a supervisory authorization requirement adds a second person’s judgment to the consequential decision to undertake an invasive procedure.

[104] These examples of requirements for internal prior approval of strip searches persuade me that the approach is feasible in the youth detention setting, where staff-to-detainee ratios are generally higher and the ability to make a reasoned assessment of the merits of a proposed strip search is, if anything, greater than in urban police stations and adult jails. The acceptance of a supervisory approval criterion as a constitutional requirement in Golden and Saeed, both analogous settings, suggests that the same standard should be observed in youth facility strip searches to meet the standards of s. 8, barring exigent circumstances.(Emphasis added by PJM)

[105] My conclusions are grounded in logic as well as authority and analogy. Strip searches should be recognized as exceptional and consequential, not routine. This is especially true when they are performed on young persons who, because of their circumstances, are extremely vulnerable. Requiring that officials think about, and explain to a supervisor, the specific reasons for a strip search in a particular set of circumstances can only produce better decision-making and greater respect for, and compliance with, the standards of s. 8.(Emphasis added by PJM)

[106]….Justice Rose proposed a test of “reasonable suspicion” at paras. 95-96 of his ruling in J.F.

[108]….For present purposes, it is enough to determine that a warrantless, standardless search with no prior authorization, or even consideration of the reason for it, falls well short of s. 8 requirements and constitutes a serious breach of rights.(Emphasis added by PJM)

[109] In making this determination, I also note that the modern model of a jail or prison – sometimes housing scores or hundreds of inmates, behind layers of concrete walls and steel doors, with a high ratio of inmates to staff and little personal insight by custodians into their prisoners – does not reflect the reality of the cases before me. I am dealing here with adolescents in their midteens. There are low numbers of young persons in absolute terms, and a generally lower ratio of detainees to staff. The perceived need in adult prisons to treat every inmate identically and according to broad criteria, with relatively little individual assessment and relatively little awareness of individual circumstances, does not apply, on the evidence I have heard, to the youth detention facilities in these cases.

[111] In Weatherall v. Canada (A.G.), [1993] 2 SCR 872, the Supreme Court of Canada addressed complaints about searching practices in adult federal penitentiaries, including frisk searches of male inmates by female staff and unannounced range inspections that might catch an inmate unclothed or using a toilet. LaForest J. dealt with the inmates’ claims under s. 8 (as well as s. 7) briefly at p. 877:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

[Emphasis added.]

[112] This analysis is regularly cited in rulings on the entitlement of correctional officers to intrude on the privacy of persons in custody. Examples include R. v. Beare, [1988] 2 S.C.R. 387, at paras. 63-64; R. v. Wiggins, [1988] 2 SCR 387, at para. 59; R. v. Stillman, [1997] 1 SCR 607, at para. 61; R v. Paterson, 2019 SKQB 305, at paras. 17-18; and R. v. Wilczewski, 2023 ONSC 3820, at paras. 69-73.

[116] I have already referred to the first in some detail. In Golden, at paras. 83, 90-99, the Supreme Court of Canada addressed a strip search incident to arrest. The majority stressed that strip searches are often “humiliating, degrading and traumatic” and may be experienced as “equivalent to a sexual assault” by women and minorities as well as by victims of abuse. The Court also noted what the evidence before me tends to confirm: routine strip searches may also be “difficult and distasteful” for the officers conducting them. See also Vancouver v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 64.

[117] The effect of Golden was to prohibit routine strip searching, without individualized grounds, at police stations following arrest: “[T]he mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”: para. 94. In Golden, the Court found a s. 8 violation and also held that the evidence uncovered in the strip search should be excluded. The search in Golden took place during an arrest in a public restaurant: para. 112. In their judgment, the Court declined to extend its ruling on strip searches incident to arrest to jails and prisons: paras. 96-97.

[119] While the majority in Golden was careful not to rule on custodial strip searches, I find the logic underlying the line it drew (and the example it offered) to be significant and helpful. The case held that when police arrest a person who is both intoxicated and completely unknown to them, and bring the person to a police station and a cell area, it is not reasonable to strip search them. This is true even though the police can have no basis to be confident that this intoxicated, unknown person will not produce a hidden weapon or ingest a hidden stash of drugs secreted under their clothing. Officers in that case can, and will, conduct a careful frisk search, but they can go no further without authorization from a superior and specific grounds.

[121] I take the same view about a detainee transferred from police custody after arrest to a youth detention centre, though it is a more controversial issue and was expressly left undecided in Golden. I conclude that it is unreasonable that a youth who has spent hours in the presence and custody of police officers – often an arresting officer, a transporting officer, a booking officer, and an investigating officer – and has not been strip searched, nor displayed behaviours suggesting the need for a strip search, should then be subjected to an automatic strip search simply because she has entered a detention centre that will hold her for days or weeks instead of hours, and place her in the company of other detainees. The logic of Golden affirms its unreasonableness.(Emphasis added by PJM)

[122] My conclusion takes account as well of the fact that staff are free to take a range of less intrusive security measures when admitting a youth to custody. They can review their records for past violence or weapons offences and perhaps find grounds for a strip search; they can look at the nature of new charges; they can ask the detainee specific questions about possession of contraband. Staff can also perform full searches of clothing before issuing institutional clothing. They can search the detainee’s room virtually at will, whether routinely, on the basis of suspicion, or as part of a facility sweep. And, of course, if they have any plausible grounds for believing that contraband is concealed on the body, they can share those grounds with supervisory staff and obtain approval for a strip search.

[128] On this key question, I agree with the reasoning of Justice Rose in the related cases where young persons accused in this homicide cited unconstitutional strip searches as a basis to stay their prosecutions or mitigate their sentences after guilty pleas. In J.F., at paras. 93-94, His Honour said:

If the ratio of Rootenberg applied to this case, the Applicant’s Charter Application would be dismissed. I find, however that it does not. Rootenberg was an adult being held on straightforward charges in an adult facility. JF and SS are youths. As was seen above youth proceedings are very different than adult proceedings. I find that s. 3(1)(b)(iii) of the YCJA requires all justice system participants to deliver enhanced procedural protections to young persons facing criminal proceedings, including their right to privacy. That provision has been in place since April 1, 2003, and has remained intact. Parliament can expect this to be firmly embedded in the minds of all justice system participants. Simply put, the privacy enjoyed by youths in custody is greater than that of adults.

In her recent decision R. v. S.M. 2024 ONCJ 656 Henschel J. (then in the Ontario Court) found that search and seizure provisions applying to adults attract a different balancing exercise when applied to youths. In S.M. the impugned search was a penile swab incidental to arrest. Her Honour said at par. 312,

The privacy interests engaged where the youth is the subject of the search are greater than in cases involving an adult. The potential impact of such an investigative technique on a young person is more profound than in the case of an adult.

I agree, and would apply the same reasoning to a strip search upon entry to a custodial facility.

[129] This passage captures determinations by two judges that young persons have a higher expectation of privacy in respect of searches by state agents than adults. Both Justice Rose and Justice Henschel rely on the YCJA’s explicit policy of elevated protection of privacy of young persons in s. 3 (1)(b) (iii) of the Act to support this view. That sub-paragraph says:

Policy for Canada with respect to young persons

3 (1) The following principles apply in this Act:

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: …

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected [emphasis added]

[133] I summarize my reasons for concluding that s. 8 of the Charter was violated in the conduct of the strip searches of the applicants as follows:

 The searches were not conducted with prior authorization, or independent consideration, addressing specific facts and circumstances, when such authorization, a basic component of most reasonable non-exigent searches, was feasible and could have been built into the strip search process.

 These searches, of the most intimate kind, do not represent a minimal intrusion into privacy. In most circumstances, they go well beyond the measures practically necessary for ensuring institutional security.

 The searches, which may have damaging psychological impacts, are an unjustified intrusion on the reasonable expectations of privacy of young persons, even in a custodial setting, recognizing that the reasonable expectations of detained youth are not the same as those of similarly situated adults.(Emphasis added by PJM)

[139] To round out the three-stage Collins analysis under which the parties framed their arguments, I am satisfied, first, that strip searches of detainees were authorized by Regulation 155/18, issued pursuant to the regulatory authority granted by s. 344 (13) in relation to custodial searches permitted by s. 155 of the CYFSA.

[140] Second, insofar as the law permits or authorizes routine custodial strip searches of young persons, the law is unreasonable because of the defect I have identified. A law allowing strip searches is not in itself unreasonable and these types of laws will likely—pending the wide availability of highly effective electronic scanners—continue to operate, in both adult and youth detention centres. However, when there is no limiting provision in the authorizing law, and when on its face that law permits a routine search based on no meaningful criteria (rather than a search resting on articulated grounds), the law itself is unreasonable. I conclude that when a law (at the second stage of the Collins analysis), permits officials to search in an unreasonable manner (at the third stage), then the law itself, as well as the manner of search conducted under it, is unreasonable. The only way a law authorizing a search can be reasonable is if the law permits a search which, if conducted, would be performed in a reasonable manner. This, I believe, is suggested by the approach of the Supreme Court of Canada to s. 10 of the Narcotic Control Act in R. v. Grant, [1993] 3 S.C.R. 223, at pp. 238-243. The same follows from the judgment of the Court of Appeal for Ontario in Pike, at paras. 90-99.(Emphasis added by PJM)

[143] Third, as I have said, the manner of the searches in this case was unreasonable, insofar as they were conducted by requiring the complete nudity of the applicants, a measure that was not necessary and elevated the degree of their intrusiveness.

(iii) Section 7: The Violation of the Right to Security of the Person

(a) The routine and standardless strip searches

[144] I am satisfied that s. 7 of the Charter was violated by the way in which the strip searches were conducted and, by extension, by the law permitting their conduct. The coerced exposure of the applicants’ naked bodies constituted a diminution of their “security of the person”. The applicants rely on observations in R. v. S.F., [2003] O. J. No. 92, 102 C.R.R. (2d) 288, at para. 106, with which I agree:

This particular strip search invaded the right of each girl to hold secure from view, the private and intimate parts of her body. In the inspection of her naked body, the policy stripped each girl of her right to that security of her person. It was a state interference with the bodily integrity of each of them that was both unnecessary and unreasonable in the circumstances. That, in turn, fed a psychological stress of each of them that was also unnecessary and unreasonable. Both girls are in the midst of adolescence, a time in life where, as a matter of common sense and simple human experience, undesired exposure to private parts of one’s body is a particularly acute discomfort. The security of their person fell prey to the police for fear of the unknown.

(Emphasis added by PJM)

[145] That reasoning supports a finding, which I would make in any event, that security of the person includes the right to remain clothed and to control the exposure of one’s body, and especially its intimate areas, to others. This right is, however, closely aligned with the right to privacy, and the reasonableness of a person’s expectation of privacy, embraced by the s. 8 analysis. Among the rights of the applicants violated by the searches in this case was their entitlement under s. 7 to maintain the security of their persons in this very sensitive aspect of that right.

[147] It is also apparent that there was no scrutiny of the justification for the individual strip searches, as I conclude s. 8 demands. Strip searches are obviously not outside the authority of state agents, if they are conducted reasonably by the standards of that section. Examined under s. 7, which requires that a deprivation of security of the person by state agents occur only in accordance with the principles of fundamental justice, I conclude that the requirements of prior authorization and minimal intrusion into privacy demanded by s. 8 are co-extensive with the demands of fundamental justice under s. 7. If there are refinements to the analysis that might differentiate the application of the two rights to strip searches, they can only be on inessential matters. In substance, the searches deprived the applicants of security of their persons in a manner that did not accord with the principles of fundamental justice for the same reasons it deprived them of their entitlement to privacy in a manner that was not reasonable.(Emphasis added by PJM)

[150] Justice Rose held at para. 66 of his ruling that a separate analytical treatment of the unconstitutional searches as a violation of s. 7, when they so clearly are unreasonable under s. 8 (for the same reasons), would be “redundant” and continued at para. 67:

In this case the Charter arguments can be analyzed completely by asking whether the strip searching was completed under a reasonable law and whether it was reasonably completed. When the constitutional standard under parallel Charter sections is engaged it is not necessary to make findings under both, or all particularly where the remedy would be the same, see R. v. Malmo-Levine 2003 SCC 74 at paras 159 – 162.

[Emphasis added.]

[151] I agree, though I would add that the extent of the departure from constitutional standards is illustrated by the fact that non-compliance with the Charter can be so convincingly demonstrated under more than one section.

D. AN APPROPRIATE AND JUST REMEDY UNDER S. 24(1) OF THE CHARTER

[182] I turn to a discussion of the appropriate remedy for breaches of s. 8 and s. 7 of the Charter based on the unjustified warrantless strip searches of the applicants and the complete nudity of the applicants during the searches.

[220] Also telling in favour of a remedy less blunt than a stay of the prosecution is the institutional separation between the prosecutorial and judicial processes and the custodial process, where the constitutional wrongs occurred. It is more straightforward to order a stay of criminal proceedings for a wrong committed within the investigative and prosecutorial apparatus, by persons directly involved with the case, than for wrongs done in custody, which is at least a step removed from the work of the police, prosecutors and courts: See R. v. Ahmad, 2008 CanLII 54312 (ON SC), at para. 11.

[221] The remedy of sentence reduction is also, for related reasons, especially appropriate here. Custodial facilities exist, in large part, to provide a means of holding offenders accountable by the imposition of “just sanctions”: YCJA, s. 38 (1). This objective may call, in serious cases, for lengthy periods of custody. A reduced sentence reduces the capacity of a facility to hold offenders for as long as they otherwise might have. It provides the accused the relief of spending less time in the setting where their rights were violated. The remedy operates within the very custodial system where the wrongs took place. It is, in my view, fitting that a constitutional remedy be felt by the institutions responsible for the constitutional wrong. This, I expect, will add further incentives to improve, rather than maintain, the unconstitutional practices.

[222] Looked at in this way, a sentence reduction in these cases, with the possibility of further reductions or stays of proceedings in later cases, should also have a chastening effect on senior ministerial officials whose attentiveness to what took place within facilities holding vulnerable youths appears to have been lacking and whose inspection system was not able even to maintain compliance with the constitutionally inadequate procedures in place.

(iii) Conclusion

[223] I began my discussion of remedy by noting the criteria of responsiveness and effectiveness highlighted in Doucet-Boudreau. I will close there as well.

[224] I believe that a sentence reduction – and the prospect of more such reductions if reforms are not implemented – will be effective in spurring constitutionally compliant strip search practices in youth facilities. It will operate as a “specific deterrent” to the practices seen in the evidence I have heard, as Tobiass contemplates.

[225] The remedy is directly responsive to the wrongs. It will be situated in, and felt by, the very institutions where the wrongs occurred, connecting their unconstitutional conduct with their ability to perform their statutory functions in full. Shortening the applicants’ time in custody will directly “address the circumstances in which the right was infringed”: Doucet-Boudreau, at para. 55.

[235] In the result, I find that ss. 8 and 7 of the Charter have been violated by unconstitutional strip searches and that the remedy will be reflected in adjustments to the penalties imposed on the applicants found guilty of a crime. I have made clear the broad societal focus of my determination and the outcomes to which I expect the ruling and the remedy will contribute.

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