HER MAJESTY THE QUEEN — v. —, 2021 ONCJ 650

CITATION : R. v. Smith , 2021 ONCJ 650 DATE : December 10, 2021 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — RICHARD SMITH ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown A. Nash For the Defendant B. Moss Trial heard: May 21; June 3, 22, 25; August 18, 2021 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Mr. Smith is charged with one count of sexual assault and one count of indecent act, both alleged to have been committed on June 7, 2020. The Crown has proceeded summarily. [ 2 ] Mr. Smith has pleaded not guilty to both counts on the information.

As a result of being strip searched at the police station after his arrest, Mr. Smith brought an application alleging that the strip search was a breach of his s.7 Charter rights. He seeks a stay of proceedings. [ 3 ] On the consent of counsel, the trial and Charter application proceeded in a blended fashion where the evidence called by the Crown was applied to both the trial of the offences and the Charter application. [ 4 ] Before the trial began, Ms. Nash applied pursuant to s. 714.1 for an order permitting the complainant, C.S. to testify remotely.

Principally because of COVID-19 considerations and because C.S.’s credibility was unlikely to be a significant issue, I provisionally granted the order on the understanding that I would make a final determination upon seeing the quality of the video link on the first day

of trial. On the first day of trial I found the video link to be excellent and allowed C.S. to testify remotely. [ 5 ] The Crown called three witnesses: C.S., and the two arresting officers, P.C. Robert Coops and P.C. David Hain. C.S.’s 911 call as well as the video and transcript of Mr. Smith’s booking at the station were made exhibits. [ 6 ] Mr. Smith testified on his own behalf on both the trial and the Charter motion. [ 7 ] Mr. Moss, on behalf of Mr. Smith, admits that the complainant was indeed sexually assaulted but argues that the Crown has failed to prove that Mr. Smith committed the offence.

As for the alleged indecent act - masturbating in public as the police approached him - Mr. Smith denies this. [ 8 ] There are three principal issues to be decided in this case: 1. Is Mr. Smith the man who sexually assaulted C.S.? 2. Did Mr. Smith commit the alleged indecent act? 3. Did the strip search of Mr. Smith infringe his Charter rights, and if so, what is the appropriate remedy? B. THE TESTIMONY OF C.S. [ 9 ] On the morning of June 7, 2020, C.S. was walking her dog northbound on the west sidewalk of Sudbury Street, just south of Queen Street.

When she was about 20 feet south of the intersection, she saw a man standing on the sidewalk facing her, approximately 15 feet away. He took on what she described as a “predator position”. He became even more aggressive as she approached him. When she was five feet away, he started looking her in the eyes and as she continued to approach him, he reached out towards her groin and said: “you got pussy”. C.S. avoided being touched and walked past him. As she did so he slapped her hard on the butt.

She kept walking and crossed to the north side of Queen Street. [ 10 ] She continued north on Gladstone Avenue (the continuation of Sudbury Street north of Queen) and then turned left into an alley just north of Queen, losing sight of the perpetrator, whom she described at trial as being in his late 40’s or mid 50’s, black, with facial hair, short hair, 6’ tall, thick build, dressed all in black, wearing shorts and a t-shirt with no shoes.

She testified that she had got a good look at him and that he appeared intoxicated. [ 11 ] C.S. re-emerged from the alley and saw him again, in the same place she had last seen him. Approximately seven or eight minutes after the assault she called the police. During this 911 call she described the perpetrator as black, in his 40’s, 6’ tall, medium build, wearing a black hat, black socks, and no shoes.

She told the 911 operator that the man did not appear intoxicated, but rather seemed mentally unwell. [ 12 ] Within two or three minutes, two police officers arrived, and she pointed out the man she believed to be the perpetrator. There were several other people in the vicinity as well as several tents. He was still not wearing shoes and was similarly attired, although his shorts were at his knees. The police went over to speak to him, but she did not witness the arrest. Nor did she ever see him masturbating. [ 13 ] Approximately 15 minutes later the police beckoned to C.S. and she approached them and saw Mr.

Smith in handcuffs sitting on the ground. When she saw Mr. Smith in police custody, it was her opinion that he was the perpetrator. [ 14 ] Several days later she gave a statement to police wherein she described the perpetrator as 6’1”-2”, black, wearing all black, barefoot, in his late 40’s, thick build, intimidating, black t-shirt, black shorts, somewhat of a beard, shorter hair - grown out buzz cut. [ 15 ] C.S. met with the police before giving her statement. They encouraged her to proceed with the charges and told her that Mr. Smith had been previously charged with similar offences. C. THE TESTIMONY OF P.C.

KOOPS AND P.C. HAIN [ 16 ] While there were some minor inconsistencies between their evidence as concerns the arrest, in my view, these inconsistencies are not material to the officers’ credibility concerning the arrest. I shall say more below about the credibility and reliability of the officers’ testimony concerning the strip search. [ 17 ] Officer Robert Koops and his partner, P.C. Hain were on bicycles nearby when they received the radio call regarding a sexual assault. They arrived on scene within a minute and encountered C.S. who pointed to Mr. Smith and said that he was the perpetrator.

She told the police that he was not wearing pants, which indeed Mr. Smith was not. [ 18 ] Mr. Smith was 60-100 feet away. There were other people in the vicinity as were several tents. [ 19 ] Both officers approached him. He had no pants on and his underwear was down around his knees. He was wearing a grey hat. He was masturbating as the police approached. The police asked him to pull his underwear up. Mr. Smith said: “I didn’t touch her…are you going to fuck me?”. [ 20 ] The police arrested him for indecent act and raised his underwear. P.C. Koops asked Mr.

Smith his name and received three responses: “Richard Smith”, “Administrator” and “Cliff Thompson” Mr. Smith gave the year of his birth as 1980. [ 21 ] Outside one of the tents, about 10 feet away, was a pair of pants that Mr. Smith claimed were his. He put them on. P.C. Koops searched the pants and found a wallet with a S.I.N. card in the name of Richard Smith inside. P.C. Koops did a computer check on Mr. Smith but could not verify his identity and thus decided to have Mr. Smith taken to 14 Division. [ 22 ] P.C. Koops found Mr. Smith’s behaviour to be bizarre, either due to mental illness or intoxication.

There was an item on the

ground near the place of Mr. Smith’s arrest that P.C. Koops thought was a crack pipe. [23] Once at 14 Division, P.C. Koops and P.C. Hain requested authorization from desk Sergeant Nicholson to conduct a strip searchof Mr. Smith because of his bizarre behaviour, the uncertainty regarding his identity and the fact that Mr. Smith admitted to prior druguse during the booking procedure. According to the officers, they were worried about Mr. Smith being in possession of drugs and therisk of injury to Mr. Smith or others. [24] When the officers asked for the strip search authorization, they had no idea whether Mr.

Smith was going to be released or heldfor bail. This was not their decision to make. Both officers admitted on cross-examination that the booking video does not contain therequest for authorization to strip search and that the request for that authorization might have been made before Mr. Smith’s appearancebefore the booking Sergeant. [25] Authorization for the strip search was granted and it was conducted by the two arresting officers in a room off the booking hall.Mr. Smith was permitted to take off his own clothes, one item at a time.

The entire search took approximately five minutes. [26] Reports are routinely prepared when strip searches are conducted. Neither officer had the report with him when they testified. [27] As concerns the inability of the police to confirm Mr. Smith’s identity, both officers admitted on cross-examination that thepolice computer that they were using only contains data regarding individuals who have been arrested, and that the fact that Mr. Smithhad never been arrested by Toronto Police would explain their inability to confirm his identity. D.

THE BOOKING PROCEDURE [28] The booking video begins at a point where the arresting officers are speaking to Sgt. Nicholson in the absence of Mr. Smith.The first thing we hear on the video is Sgt. Nicholson saying: “We’ll get him fingerprinted and go from there”. Mr. Smith is thenbrought into the room. He is wearing grey pants, a black t-shirt, and black socks. An officer is holding his grey baseball cap. [29] P.C. Koops explains to Sgt. Nicholson why Mr. Smith has been arrested and why he was brought to the station. [30] Mr. Smith is then interviewed by Sgt. Nicholson. Mr.

Smith is told about his right to counsel and acknowledges that heunderstands. Mr. Smith suggests (although it’s not clear) that he wants to speak to duty counsel. [31] Mr. Smith admits to having done “drugs” within the last 24 hours and that it might be crack that he consumed. Mr. Smithdenies ever having thoughts of self-harm and denies any diagnosis of mental illness. He is then told by Sgt. Nicholson that he will bestrip searched. [32] There is then a discussion about Mr. Smith’s identity. Mr. Smith clearly states that his name is Richard Smith. [33] Mr.

Smith is soon taken away by the arresting officers for his strip search and is returned approximately six minutes later bythe same officers. Just before being led away for the last time Mr. Smith asks how long he’ll be staying and P.C. Koops tells him that heis going to have a bail hearing. E. THE EVIDENCE OF MR. SMITH [34] Mr. Smith was 51 years old at the time of his arrest. He was born in Windsor, Ontario and moved to the U.S.A. when he was22 years old. He returned to Canada in 2019 and was living with his mother’s guardian in Toronto until he was evicted in November2020. Mr.

Smith was then homeless and was living in a tent at the corner of Sudbury and Queen Streets when he was arrested. [35] Mr. Smith denied assaulting C.S. and did not see who did. He was facing away from the street, closer to the adjacent railwaytracks, trying to change into new underwear he had found in a nearby shopping cart when he heard a police officer approach him frombehind, telling him he was under arrest for sexual assault. [36] Mr. Smith cooperated with the police and identified himself as Richard Smith. He denied saying anything to the police otherthan that.

He denied masturbating as they approached. [37] On cross-examination he admitted to using marijuana but denied using crack. He said that he told the police at 14 Division thathe might have done crack recently because he was angry at having been arrested. He further admitted to drinking as many as six bottlesof beer the night before his arrest but denied being intoxicated or hung over on the morning of his arrest. [38] Mr. Smith admitted to seeing C.S. on the sidewalk and said that he saw no one near her and that he was the only man in thevicinity. [39] He denied ever being diagnosed with a mental illness. F.

ANALYSIS OF THE CRIMINAL CHARGES [40] As concerns the allegations of sexual assault and indecent act, the burden is on the Crown to prove these offences beyond areasonable doubt. [41] Because Mr. Smith testified and denied committing the alleged offences, the analysis of the evidence in the context of thecriminal allegations must be undertaken in accordance with the law as set out by the Supreme Court in R. v. W. D., (SCC), [1991] S.C.J. No. 26. If I believe Mr. Smith, he must, of course, be acquitted of the charges.

Even if I do not believe him, if histestimony, alone, or along with other evidence, leaves me with a reasonable doubt as to his guilt on either of the charges, he must beacquitted of those charges. Lastly, even if I do not accept his testimony and it does not, when viewed in the context of all the evidence,leave me with a reasonable doubt, I must examine the remaining evidence that I accept to see if either charge is proved beyond a

reasonable doubt. If so, I must convict. If not, I must acquit. [42] As for whether the Crown has proven that Mr. Smith committed the sexual assault, I believe it best to begin with the testimonyof C.S. [43] I see no credibility concerns with her testimony. There were no material inconsistencies in her evidence and no apparent motiveto falsely accuse Mr. Smith. Indeed, C.S. was somewhat reluctant to follow through with her complaint to the police. Rather, what is atstake is the reliability of her identification of Mr. Smith as the perpetrator. [44] Mr.

Moss argues that because C.S. walked behind a building and lost sight of the perpetrator for some period of time, hersubsequent identification of Mr. Smith cannot be relied upon. He also notes that her description of the perpetrator evolved somewhatover time and that while Mr. Smith wore a grey hat, C.S. described it as black in her 911 call. He also argues that when she learned frompolice that he had done this kind of thing before, she became more convinced that Mr.

Smith was indeed the perpetrator, such that herdescription evolved to match his and her description at trial cannot be relied upon. [45] I accept C.S.’s account of her initial confrontation with her assailant, which included a description of a long enough face to faceencounter to get a strong mental image of his face, build, facial hair and clothing. Even though she did lose sight of him for some timebefore re-emerging and recognizing Mr. Smith as her assailant, I find that her recognition of Mr. Smith as her assailant was accurate andreliable.[1] This conclusion is fortified by the fact that Mr.

Smith’s clothing matched the clothing she saw on her assailant. I agree withMr. Moss that the behaviour of the police would have had a tendency to undermine the reliability of C.S.’s later opinion, but the 911description and her identification of Mr. Smith as the assailant after she came back out from behind the building both occurred before theproblematic interactions with the police. [46] The reliability of her identification is further supported by Mr. Smith’s testimony to the effect that when he saw her there werevery few, if any, other men in the vicinity. [47] Mr. Smith has denied assaulting C.S.

I must weigh Mr. Smith’s testimony pursuant to the rule in W.D. as described above.Copeland J., in R. v. Azonwanna, 2020 ONSC 1513, at paras 17-19 has succinctly explained the proper approach to cases such as thisone, where the accused has denied guilt, yet there exists a body of evidence indicative of guilt: 17. In assessing the evidence, the Court should consider all of the evidence together, rather than assessing individual pieces of evidencein isolation. This proposition is important to bear in mind in engaging in the W.(D.) analysis.

A trier of fact, in considering whether itbelieves the defence evidence, or is left in a reasonable doubt by the defence evidence, must not make that assessment by looking at thedefence evidence in isolation. Rather, the assessment must be made by considering the defence evidence in the context of the whole ofthe evidence at trial. Although in my analysis I will refer to specific pieces of evidence and comment on them, I bear in mind to considerthe evidence as a whole, and its cumulative effect. 18. The court can accept some, none or all of any witness's testimony.

For example, if some parts of the testimony of a defendant aredisbelieved, other parts of his testimony may still be believed or raise a reasonable doubt: R. v. S. (J.H.) at para. 11. 19. It is open to a trial judge to reject a defendant's evidence as not credible and not raising a reasonable doubt based on a considered andreasoned acceptance beyond a reasonable doubt of conflicting credible evidence.

Such an analysis is as much an explanation for therejection of a defendant's evidence as is a rejection based on a problem identified with the way a defendant testified or the substance of adefendant's evidence, provided that the trial judge's reasoning process is clear, the trial judge's analysis of why they believed thecomplainant's evidence is reasoned and considered, and the reasons are clear that the trial judge has applied the reasonable doubtstandard to the assessment of credibility, and has not engaged in a credibility contest R. v. J.J.R.D., at paras. 35-39,44-47, 53 (ONCA); R. v.

Slatter, 2019 ONCA 807 at paras. 83-84, 89; R. v. R.D., 2016 ONCA 574 at paras. 13-22. [48] Mr. Smith’s denial of guilt with respect to the two alleged offences must be weighed in the context of the whole of theevidence, which in this case consists of C.S.’s identification evidence, which I consider to be reliable and strongly inculpatory, as well asthe evidence of the arresting officers, both of whom testified that they saw Mr. Smith masturbating in public.

While I will have more tosay about the credibility of these officers in the context of the Charter application, I find this aspect of their evidence convincing. Neitherofficer needed to fabricate this allegation if arresting Mr. Smith was their goal. They had already received the sexual assault complaintfrom C.S. Furthermore, their evidence on this point is supported to some degree by C.S.’s testimony that Mr. Smith’s pants were downjust before she pointed him out to the officers. I accept their evidence on this point. [49] Officer Koop’s evidence about Mr.

Smith giving other names when first arrested also rings true and is contrary to Mr. Smith’stestimony. I cannot see why this officer would go to the trouble of fabricating this evidence in this case. I accept his evidence on thispoint. [50] As for Mr. Smith’s credibility as a witness generally, I was not impressed. He was snarky in cross-examination and denied everusing cocaine. Yet, he told Sgt. Nicholson that he might have consumed cocaine in the previous 24 hours. Both these assertions cannotbe true. [51] I do not accept Mr. Smith’s evidence where it is not supported by other evidence.

Nor, in my opinion, does it raise a reasonabledoubt on the criminal charges. [52] Mr. Moss argues that even if I accept the evidence of the officers, the Crown has failed to prove that what they said they saw

Mr. Smith doing as they approached him (masturbating) amounts to an indecent act. [53] The leading authority as concerns what constitutes an indecent act is the Supreme Court’s judgment in R. v. Labaye, 2005 SCC80 , [2005] 3 S.C.R. 728 at para. 62. Conduct is indecent when it meets this test: That by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way thatundermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamentallaws by, for example: (

a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or (

b) predisposing others to anti-social behaviour, or (

c) physically or psychologically harming involved in the conduct, and 2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. [54] In my opinion, masturbating with one’s penis exposed, in a public place, clearly “confront[s] members of the public withconduct that significantly interferes with their autonomy”. [55] I am convinced beyond a reasonable doubt that Mr. Smith committed the two alleged offences. G. THE CHARTER APPLICATION [56] As concerns the alleged Charter violation, while the onus is on Mr. Smith to prove the alleged violation, Ms.

Nash concedesthat because Mr. Smith was strip searched, the onus falls on the Crown to prove, on a balance of probabilities, that the strip search meetsthe test established in R. v. Golden, 2001 SCC 83. [57] For the strip search of Mr.

Smith to be Charter compliant, the Crown must prove on a balance of probability that the searchwas: 1. conducted incident to a lawful arrest. 2. conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for thearrest. 3. based on additional reasonable and probable grounds, beyond those of the arrest, for concluding that a strip search is necessary inthe particular circumstances of the arrest.

Further, “whether searching for evidence or for weapons, the mere possibility that anindividual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”; and 4. conducted in a reasonable manner consistent with s. 8. R. v.

Golden, supra [58] The Crown bears the burden of rebutting the presumptive unreasonableness of the strip search and to do so it must demonstrateadditional reasonable and probable grounds justifying the strip search beyond the reasonable grounds that form the basis of the arrest.The reason for requiring additional reasonable grounds in excess of those forming the basis for the arrest is that “a strip search is a muchmore intrusive search than a ‘frisk’ search and, accordingly, a higher degree of justification is required in order to support the higherdegree of interference with individual freedom and dignity”: Golden, at para. 98. [59] The requirement that officers have reasonable and probable grounds before conducting a strip search has both a subjective andobjective component: R. v.

Johnson, 2016 ONSC 3947 [60] I start by noting that both officers Koops and Hain testified that it was Sgt. Nicholson who authorized the strip search. It is thusincumbent on the Crown to prove that Sgt. Nicholson honestly believed that there were reasonable and probable grounds to support thestrip search, i.e. that a strip search was necessary in the circumstances and that it was likely that weapons, or evidence of the crimes forwhich Mr. Smith was arrested would be found during the search. Yet Sgt. Nicholson did not testify. [61] Ms.

Nash argues that if I am satisfied that the necessary reasonable grounds existed, I can safely conclude that Sgt. Nicholsonwas aware of them and thus had the necessary subjective state of mind. [62] I do not accept this argument. Even if there existed objective reasonable grounds for the strip search, that only proves that Sgt.Nicholson might have authorized the strip search based only on those reasonable grounds. It doesn’t prove that he was aware of themwhen he made the decision, nor does it prove that Sgt. Nicholson acted on that basis. While there is evidence from officers Koops andHain that they told Sgt.

Nicholson about their earlier dealings with Mr. Smith, given the problems with their testimony concerning thesearch (detailed below), and the fact that the video of Mr. Smith’s booking does not depict this discussion, I find the absence of Sgt.Nicholson’s testimony to be fatal to the Crown’s burden of proving subjective reasonable and probable grounds. [63] As concerns whether there existed objective reasonable and probable grounds to support the strip search, in my opinion the

Crown has failed to prove that the strip search conducted on Mr. Smith was reasonable in the circumstances. [64] The arresting officers who requested the strip search testified that they requested a strip search because of Mr. Smith’s unusualbehaviour, his admitted recent drug use and uncertainty regarding his identity. They believed that a strip search was required for theprotection of other prisoners as well as Mr. Smith. They were also concerned about drug possession. [65] It is important to note that, according to their evidence, the strip search was requested before any decision was made as towhether Mr.

Smith would be held in custody. Furthermore, it is abundantly clear that the request to strip search, and the decision toauthorize the strip search both occurred before the booking encounter. This is critical because the booking encounter was the first timeMr. Smith said anything about drug use. For this reason, I reject the evidence of the officers to the effect that Mr. Smith’s statements toSgt. Nicholson added to their grounds for requesting a strip search. Concern about Mr.

Smith secreting drugs on his person, based on thecircumstances of his arrest, was completely unwarranted. [66] Nor was there any evidence to suggest that Mr. Smith was a violent threat to himself or other prisoners or police. Nor was thereany evidence to suggest he possessed a weapon.

He was to be held in a single cell, and, according to the officers, when the decision tostrip search him had been made, no decision had yet been made to hold him overnight for a show cause hearing. [67] The assertion by the police officers that they relied on information they didn’t yet have when requesting the strip search leadsme to reject the entirety of their evidence as concerns the decision to perform the strip search. [68] As for the difficulty the police had in establishing Mr.

Smith’s identity, this doubt was mostly fueled by the fact that the policewere searching a data base whose foundation was prior arrests, which doesn’t apply to everyone in police custody. In any event, suchconcerns do not support conducting a strip search. [69] As concerns his odd behaviour, the police suspected that Mr. Smith might be suffering from some mental illness. The presenceof mental illness cannot support the serious invasion of a detainee’s privacy that is a strip search. [70] In

summary, nothing about the circumstances of Mr. Smith’s arrest, the alleged criminal behaviour, or Mr. Smith’s antecedentsprovide reasonable grounds for a strip search. I find that the Crown has failed to justify the strip search. In my view the strip search was aflagrant violation of Mr. Smith’s Charter rights. H. WHAT IS THE APPROPRIATE REMEDY? [71] Mr. Moss seeks a stay of proceedings. The leading authority as concerns the imposition of a stay of proceedings as a remedyfor a s. 7 Charter breach is R. v.

Babos, 2014 SCC 16. 31 …[T]his Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse ofprocess will be warranted (R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into twocategories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conductcreates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para.73)… 32.

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "theinterest that society has in having a final decision on the merits" (ibid., at para. 57). [72] Mr. Smith’s case falls into the second, or residual category. In Canada (Minister of Citizenship and Immigration) v.

Tobiass[1997] 3 S.C.R. 39, the Supreme Court described this category as follows: For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely tocontinue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter conditionwill not be met unless the former is as well - society will not [page324] take umbrage at the carrying forward of a prosecution unless it islikely that some form of misconduct will continue.

There may be exceptional cases in which the past misconduct is so egregious that themere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91] [73] The criteria to be applied in considering whether a strip search of an accused is justified have been clear since Golden in 2001.The fact that the police in this case ignored this notorious legal test 20 years later leads me to conclude that there is a systemic problem inthe Toronto Police Service, which if not addressed will continue. See R. v.

Samuels, 2008 ONCJ 85. [74] As concerns the availability of some other remedy, it is important to note that Ms. Nash concedes that Mr. Smith has alreadyspent enough time in pre-trial custody such that no further carceral punishment would be called for. As a result, mitigation of sentence is

not an available remedy in Mr. Smith’s case. The notion of finding Mr. Smith guilty and discharging him does not strike me as a sufficient remedy in the circumstances. I. CONCLUSION [ 75 ] I reiterate that the Supreme Court, in Golden , set out the law regarding strip searches in 2001, almost 20 years prior to Mr. Smith’s arrest. There has been much litigation in the ensuing years, all of which should have driven the message home to all police services, and to all individual officers across the country. Either the three officers involved in Mr.

Smith’s strip search weren’t aware of the law established in Golden or chose to ignore it. The former is an outrageous systemic failure. The latter is high-handed disregard for Mr. Smith’s Charter rights. [ 76 ] I find that in Mr. Smith’s case, denouncing misconduct and preserving the integrity of the justice system outweighs society’s interest in having a final decision on the merits. [ 77 ] In my opinion, Mr.

Smith’s case falls into the category of the clearest of cases and a stay of proceedings is the appropriate remedy. [ 78 ] Because a stay is being entered, there will be no findings of guilt registered as concerns the alleged criminal offences. Released on December 10, 2021 ________________________ Justice Russell Silverstein