HER MAJESTY THE QUEEN _ v. -, 2003 ABPC 67

R. v. Keewatin, 2003 ABPC 67 Date: 2003 032 8 Docket: 021079926P101001 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN _ and - PATRICK ASHLEY KEEWATIN JUDGMENT OF THE HONOURABLE JUDGE D.J. McNAB COUNSEL : Patricia Giroux for the Crown Michelle Daneliuk for the Accused _1_ The accused is charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs & Substances Act. This is a ruling following a Voir Dire conducted to determine whether the accused’s rights under s.8 of the Canadian Charter of Rights & Freedoms [“the Charter ”] have been infringed.

If his rights are found to have been violated, the accused asks that the cocaine found as a consequence of the search be excluded from evidence pursuant to s. 24(2) of the Charter . 2. The evidence heard on the Voir Dire came from two Edmonton police officers. Cst. Jody Grabas is a junior officer, with 1 year of service at the time of the incident in question. A

summary of Cst. Grabas’ evidence is as follows: on the day in question, Cst. Grabas attended at a motor vehicle accident, where the accused (“Keewatin”) was present. Cst. Grabas learned that Keewatin was wanted on a warrant issued for an offence under s. 115 of the Gaming & Liquor Act (known colloquially as “being drunk in a public place”). Cst.

Grabas, a female police officer, conducted what she called a cursory search of Keewatin, and describes it as brushing her flashlight over various parts of his body, checking for weapons (or items that could be used as such) which might pose a danger to any police officer taking custody of Keewatin. Her description of this brings to mind the style of search conducted by airport security at an airport screening point. She found no such items; she handcuffed the accused and put him in the rear seat of her police car. There was no security screen between the front & rear seats.

They proceeded to the north division police station and Keewatin was placed in a holding cell. Cst. Grabas testified that she conducted searches on police computer systems to obtain information about Keewatin relative to any criminal history, and learned that he had prior convictions for a number of things, including “being unlawfully at large” and “failing to appear”. Keewatin’s criminal record was filed as an exhibit on the Voir Dire and it discloses the offences mentioned as well as a number of property offences. There are no convictions for offences involving drugs or violence.

She was unable to obtain an address for Keewatin. Cst. Grabas also checked the criminal background of the person who was with Keewatin at the initial scene, and learned that this second person had a criminal record for drugs & offences of violence. 1 . Cst. Grabas then decided that Keewatin ought to be taken to the downtown police headquarters to appear before a Justice of the Peace in relation to the s. 115 warrant. Cst. Grabas expected that the Justice of the Peace would conduct some type of “bail hearing”

although she didn’t know when the Justice of the Peace would arrive. Given Keewatin’s criminal record and that he was of “No Fixed Address”, Cst. Grabas decided to submit paperwork to the Justice of the Peace indicating a desire on the part of the authorities that Keewatin be detained in custody. The constable further testified that at downtown headquarters, Keewatin would be held in a cell area, perhaps with others, to await his “bail hearing”. Cst. Grabas believed, indeed expected, that Keewatin would be detained by the Justice of the Peace.

This belief, and the likelihood of Keewatin being in proximity to others (either police personnel or other arrestees) prompted Cst. Grabas to direct that Keewatin be strip searched before being moved from north division to the downtown headquarters. She said that this was in accordance with Edmonton Police Service policy, and, that it was also part of her routine procedure when dealing with arrestees whom she believes will be held in custody. Her succinct reasons or “grounds” for the strip search related to safety of officers and other prisoners and “because he [Keewatin] was going to be in custody”.

She asked Cst. Karpo, a male officer, to actually conduct the strip search. Cst. Karpo said that Cst. Grabas asked that Keewatin be stripped search because he was “of no fixed address and would be going to the remand center”. It is unclear whether the expression “remand center” meant the Edmonton Remand Center used to hold persons who have been denied bail pending trial or simply the temporary holding area to await the arrival of the Justice of the Peace. 1. Cst. Karpo conducted the strip search without any inquiry of Cst. Grabas as to the necessity for this specific type of search. Cst.

Karpo went to Keewatin’s cell, and out of the view of others, asked Keewatin to begin removing articles of clothing. I am satisfied that this constitutes a strip search, as defined in R. vs. Golden 2001 SCC 83 (CanLII) , [2001] 3 S.C.R. 679 at paragraph 47 . Keewatin removed his shirt, then his shoes and then his pants; at that moment Cst. Karpo noticed an obvious bulge in one of Keewatin’s socks. It was found to be numerous pieces of crack cocaine, packaged together and which Cst. Karpo agreed was at least the size of a golf ball. Cst.

Karpo testified that it was readily noticeable and, in fact, would have been detected had he conducted a thorough, hands-on, pat down search. 1. Having found the cocaine, quite understandably at that point, Karpo continued the strip search in order to determine whether there was other contraband on Keewatin. None was found. Keewatin was charged with possession of cocaine for the purpose of trafficking and is now before this Court alleging a violation of his s. 8 Charter rights.

It is noteworthy that it is that part of the strip search described in paragraph 4 that is complained of, and not the continuation of it once the drugs were found. 1. There is considerable jurisprudence relative to s. 8 of the Charter , strip searches, and the implications that flow from conducting such searches. This Court has had the benefit of considering the SCC decision in R. vs. Golden, supra, and the various cases cited therein including R. vs Flintoff 1998 CanLII 632 (ON CA) , 126 CCC (3d) 321 and R. vs Toulaise ( unreported).

The Court has considered these decisions and the application of those cases to the facts of this matter. 1. I do not propose to outline the variety of arguments advanced by each party. The position of the accused is that a violation of s. 8 has occurred. Ms. Daneliuk likens this situation to a “drunk tank” arrestee and argues forcefully that persons arrested on minor offences (such as “drunk tank” arrestees) should not be strip searched: see R. vs Golden , supra at paragraphs 96 and 97 , and that a proper remedy is exclusion of the evidence pursuant to s. 24(2) of the Charter .

Given that decisions to strip search ought to be made on a case-by-case basis, I have some difficulty with that argument. By its very nature, a “drunk tank” may often contain several persons, each under varying degrees of alcoholic influence, some perhaps with heightened emotions & tempers because of their predicament. In such environment, it would seem logical that concerns of “prisoner safety” might dictate that a particularly thorough search of such persons be done prior to incarceration. 1. The Crown’s position is that the strip search of Keewatin was not in violation of s. 8 of the Charter . Cst.

Grabas believed that Keewatin would be detained in custody; the Crown categorizes this as a situation of someone being put into the prison population, where strip searches are done in order to address safety concerns relative to custodial staff and/or other prisoners. The Crown also argues that even if the search did constitute a violation of s. 8 of the Charter , the cocaine seized should not be excluded from evidence pursuant to s. 24(2) , relying on the principles enunciated in the SCC decision of R. vs. Collins 1987 CanLII 84 (SCC) , [1987] 1 SCR 265 . 1.

Given the extensive submissions from counsel, and the discourse between the Court and counsel, I need not review and quote from the cases provided to the court. The principles enunciated in the various cases referred to by counsel are clear. I have also had the benefit of the recent judgment of my brother Judge Lefever in R. vs. Pringle [2003 ABPC 7]. Although it is different in its facts, it is an excellent decision which thoroughly reviews existing case law on this topic.

In determining this application, I note the clear statements of the SCC in Golden , supra¸ relative to the conduct of strip searches, including the reasons & circumstances surrounding any decision taken to conduct such a search; the recognition of the demeaning & humiliating nature of such a search; the observation that strip searching is to be undertaken on a “case-by-case” basis; and the Court’s comments relative to the manner in which such searches are conducted. 1.

The overriding principle that this court takes from the various cases considered is that decisions to conduct strip searches are to be made on a case-by-case basis (hence my earlier observations about “drunk tank” arrestees). No doubt it is desirable, even necessary, that

a police or corrections agency have a “policy” regarding strip searches, but officers ought not to simply follow the policy blindly, giving little or no thought as to whether a strip search is appropriate for a particular offender in the particular circumstances. I do not impute any ulterior or questionable motive, or any bad faith, to either police officer. The manner in which Cst. Karpo conducted the strip search was exemplary. Cst.

Grabas is a relatively young police officer, anxious to follow procedure as it had been taught to her and anxious to ensure that others would not be injured as a result of her failure to follow procedure. What is critical however is whether Keewatin should have been strip searched in the first place? Did Cst. Grabas’ adherence to policy and lack of experience fail her on this occasion? 1. Paragraph 3 sets out the evidence which outlined Cst. Grabas’ reasons for requiring the strip search. It is the court’s opinion that relative to “safety”, Cst.

Grabas’ initial search (as cursory as it was) must have satisfied her that Keewatin posed no real concern; this is so because, albeit handcuffed, he was taken to north division in a police car without a safety shield between him and Cst. Grabas, and, lodged in a cell without any further search. Ultimately, it was Cst. Grabas belief (and expectation) that because Keewatin had no fixed address, he would be kept in custody by the Justice of the Peace. This is what cemented her decision to have the strip search done. 1.

A “policy of strip search prior to incarceration” makes sense if a Judge or Justice of the Peace has made an Order which remands someone into custody, or, where a person is sentenced to jail. Otherwise, the law seems clear that strip searches (even where a “police policy” exists) should be considered case-by-case. Much was said by both counsel on the topic of the extent to which the search was “invasive” or “intrusive”. In this matter, the evidence is clear that Cst.

Grabas conducted a very cursory search at the scene (what I called “A”) and that there was no thought given to a more thorough hands-on, pat down search (what I called “B”). Rather, Cst. Grabas (and Cst. Karpo at her direction) proceeded directly to a strip search (what I called “C”). This was done even before there had been any determination by the Justice of the Peace that Keewatin was going to be remanded into custody. There was nothing in Keewatin’s own background (personal or criminal) or in his behavior on that day that would have given Cst.

Grabas further reason to fear for the safety of police personnel or believe that Keewatin would carry contraband into a prison setting. The move from “A” to “C” (jumping over “B”) uncovered the cocaine. If a thorough, hands-on, pat down search had been performed, Cst. Karpo said that this would surely have uncovered the contraband; a subsequent strip search would have been far more defensible. However, that did not occur, and on that basis, I am satisfied that the strip search of Keewatin did contravene s.8 of the Charter . 1.

That does not end the matter however, because the court must still consider the application to exclude the cocaine from evidence pursuant to s. 24(2) of the Charter , and decide whether exclusion from evidence is a proper remedy. The court has considered the decision of R. vs. Collins, supra. As previously stated, the court does not impute any bad faith or improper motive to Cst. Grabas or Cst. Karpo; and while improper motive or bad faith attributed to either officer would strengthen the argument for exclusion of the evidence, “good faith” does not necessarily strengthen the case for admission.

In this case, the matter of good or bad faith is not a factor. The court infers that Cst. Grabas recognized that her initial search was “cursory” and she felt that a more thorough search was needed. However, Cst. Grabas jumped from “A” to “C” without even considering the propriety or utility of stopping at “B”. She did so because she chose to follow “policy”, whether her own or that of Edmonton Police Services. She did so well in advance of knowing whether there would even be a need to strip search, that it to say, a need brought about because Keewatin was actually going to be put into a prison population.

This leap-frog from “A” to “C” uncovered the cocaine and Ms. Daneliuk urges this court to refuse to admit the cocaine into evidence, in order to “send a message to the police”. In my opinion, “sending a message” is appropriate and required if there is “bad faith” or “improper motive” shown, neither of which exist here.

Nonetheless, what is required is an indication from this court that it is the clear responsibility of senior police personnel and/or prosecuting authorities to ensure that officers in the field are properly and fully educated relative to matters such as those found here, and that all officers understand the correlation between a police department “stating a policy” and police officers “implementing the policy”. 1. In this case, the evidence on which the Crown relies was obtained as a result of Cst.

Grabas’ unquestioning adherence to a “policy”, a failure to consider whether the purpose of a more thorough search could be satisfied by a less intrusive and demeaning means, and, her rather hasty determination that a strip search was needed even before the underpinnings for such search (ie:, a remand into the prison population) had been established. Ms. Daneliuk referred to the unreported decision of R. vs. Crystal Lee Woods [October 24, 2000, Alta. QB# 00031488-C4] to support her argument.

In Woods , the Court described an investigating police officer as intelligent, possessed of good investigative skills and likely to develop into a fine police officer. I would describe Cst. Grabas in much the same way. It is important, however, that she bring greater perspective and balance to the discharge of her duties as a police officer rather than slavishly following a “policy” without giving thought as to how to properly implement the policy. While it is this court’s view that Cst. Grabas’ actions were most probably the result of inexperience, this is of no consolation to an accused who was strip searched.

To overlook this, and admit the cocaine into evidence, would condone that approach. This would bring the administration of justice into disrepute. Consequently, it is the court’s ruling that the cocaine seized is not admissible into evidence. DATED at Edmonton, Alberta this 28 th day of March 2003. _______________________________________

D.J. McNab Provincial Court of Alberta