R. v. Desjourdy, 2013 ONCJ 170

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. Desjourdy , 2013 ONCJ 170 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEVEN DESJOURDY Before Justice T. Lipson Reasons for Judgment released on April 3, 2013 C. Webb .................................................................................................................... for the Crown M. Edelson, V. Clifford and C. D’Angelo ..................................... for the accused Steven Desjourdy LIPSON J.:

Background [ 1 ] Steven Desjourdy pled not guilty to a charge of sexual assault of S.B., contrary to s. 271 of the Criminal Code . The defendant is employed by the Ottawa Police Service (OPS) and holds the rank of Sergeant. At the time of the incident giving rise to the charge, S.B. was twenty five years of age and employed as a telemarketer. [ 2 ] The charge arises from Sgt. Desjourdy’s treatment of S.B. on September 6, 2008 while she was detained in the Ottawa Police Service Central Cellblock following her arrest for public intoxication.

During the course of a search prior to her being lodged in a cell, S.B. kicked and injured Special Constable Melanie Morris who is employed by the OPS as a cellblock attendant. Other officers then took S.B. to the ground. Sgt. Desjourdy, the officer-in-charge of the cellblock at the time, used a pair of blunt-edged safety scissors to cut off S.B.’s shirt and bra as she lay face down on the police station floor. S.B. was then lodged in a cell for several hours before she was released from custody. [ 3 ] The Crown takes the position that Sgt. Desjourdy conducted an unlawful strip search of S.B.

It is submitted that his purpose was strictly retaliatory and aimed at punishing and humiliating S.B. for having assaulted Special Constable Morris. The Crown contends that the defendant lacked reasonable grounds to strip search the complainant and says, as well, that the manner in which the officer conducted this strip search was unreasonable, abusive and involved an excessive use of force. The Crown says that for those reasons, the cutting of the shirt and bra by Sgt. Desjourdy constituted an assault upon S.B.

The Crown further submits that the defendant committed a sexual assault because he violated S.B.’s sexual integrity in order to demean her. Finally, Crown counsel suggests that the strip search was conducted in an abusive manner that had no regard for the complainant’s sexual dignity and privacy, objectively transforming what might otherwise have been a non-sexual context to a sexual one. [ 4 ] The defence submits that Sgt.

Desjourdy’ s conduct in cutting and removing S.B’s bra and shirt was solely for the purposes of completing the search of the complainant for weapons and contraband and to prevent her from harming herself with those items of clothing. Counsel for the defendant submits that the strip search was both lawful and necessary because of S.B.’s resistant and assaultive behaviour in the booking room. It is also argued that the force used by Sgt. Desjourdy was not excessive but reasonable given the exigent circumstances present at the time. The defence submits that Sgt.

Desjourdy’s use of force was justified and protected by s. 25 of the Criminal Code . Even if Sgt. Desjourdy’s conduct did amount to an assault, the defence says that there was no sexual or carnal context in the alleged conduct that would make it a sexual assault. [ 5 ] S.B. was charged with assault police in connection with the events of September 6, 2008. Her trial was held in October 2011 before another judge of the Ontario Court of Justice.

The court stayed the charge against S.B. pursuant to section 24(1) of the Charter in order to remedy breaches of S.B.’s ss. 8 and 9 Charter rights flowing from her arrest and detention. [ 6 ] Following the stay of proceeding, the Ottawa Police Service Professional Standards

Section conducted an internal investigation into the circumstances surrounding the arrest and detention of S.B. Then in late 2010 the Special Investigations Unit (SIU) commenced its investigation. In December 2010 S.B. commenced a civil action against the OPS and several individual officers, including the defendant, seeking $1.2 million in damages. In February 2011 S.B., through her civil counsel, provided a signed statement of her version of events. She met with SIU investigators on March 11, 2011.

A case chronology that includes details of the SIU investigation was filed on consent of the parties as Exhibit 1-Tab 1. The SIU investigation culminated in Sgt. Desjourdy being charged with sexually assaulting S.B. [ 7 ] S.B. did not testify in this trial. Her evidence is contained in an agreed statement of fact, Exhibit 1-Tab 2. However, there are several significant portions of the complainant’s statement that are underlined and not admitted by the defence. [ 8 ] The prosecution case against Sgt.

Desjourdy consists of the statement of S.B., the testimony of the OPS officers and Special Constables who dealt with S.B. and videotape of S.B.’s arrival and detention at the OPS cellblock. The videotape evidence, filed as Exhibits 3 and 12, captures the events which give rise to the charge before the court. There was no audio component to the recording system in place in the cellblock at the time. The Crown’s case also includes Sgt. Desjourdy’s September 6, 2008 notebook entries, Exhibit 18, as well as his Investigative Action report, Exhibit 17.

The defence elected to call no witnesses. [ 9 ] During this trial, counsel and some of the witnesses referred to the fact that there is significant public interest in this matter. Undoubtedly, there are members of the community who have formed strong views about this case based on what they have heard, read or seen in the media or elsewhere. I wish to be clear that the verdict in this trial must be and is based solely on the court’s assessment of the evidence and submissions of counsel heard in the courtroom and on nothing else.

OVERVIEW OF THE EVIDENCE The arrest of S.B. [ 10 ] On September 6, 2008 Constables Downie and Flores were patrolling the Rideau Street-Byward Market area of Ottawa. They were in uniform and in a marked police cruiser. At approximately 5:30 a.m., the officers observed S.B. drinking from a beer bottle on the north sidewalk of Rideau Street near King Edward Avenue. She was also speaking to someone in a white van. The officers stopped their vehicle to speak with S.B. They questioned her about her drinking in a public place and asked for identification. S.B. initially refused to identify herself but eventually did.

The officers conducted a police computer check which revealed that there were no outstanding warrants or bail conditions pertaining to her. Constable Downie, who was training Constable Flores, decided to exercise his discretion and not issue S.B. a provincial offences ticket for consuming alcohol in a public place. Instead, he told her to go home. [ 11 ] S.B. began to walk away but then returned to speak to the officers. She wanted to know why they had stopped her. Constable Downie testified that he told S.B. several times that he had stopped her because of the open liquor and the fact she was consuming

alcohol in public. According to the officers, S.B then became very agitated. She was intoxicated, swearing and verbally confrontational. They said she told them that she hated the police and that she didn’t care about going to jail. Constable Downie then instructed Constable Flores to arrest S.B. for public intoxication. Constable Downie told the court that given S.B.’s aggressive behaviour and degree of intoxication, he was concerned that S.B. posed a potential danger to herself or others. Constable Flores placed S.B. under arrest and handcuffed her.

Constable Flores testified that S.B. was “moving her hands around and making it difficult” for him to apply the handcuffs. The officers called for a female officer to conduct a roadside search of S.B. [ 12 ] Constable Jennifer Biondi arrived on scene at 5:55 a.m. and conducted a roadside search of the complainant. She had no recollection of her dealings with S.B. but recorded in her notebook that the complainant was “belligerent with officers” and was “not cooperative”.

She told the court that, in order to complete the pat-down search, it was necessary to “blade” her hands between the bra and breast area of S.B. in order to discover any concealed weapons or potential weapons. Constable Biondi did not find any items of concern during her search of S.B. [ 13 ] S.B. said in her statement that after an evening of socializing at an Ottawa bar and later at a friend’s house, she was in the Byward Market area walking home on Rideau Street. She was carrying an empty or near empty bottle of beer.

She had consumed two shots of rum and four or five bottles of beer over the course of six hours earlier that night. She conceded that she was tipsy but denied being intoxicated at the time she was stopped by the officers. She provided verbal identification on request. After being told to go home, S.B. wanted to know why she had been stopped. She conceded that her voice may have been raised but she never yelled or screamed at the officers. Neither officer provided any explanation for stopping her. They just told her that she was drunk and repeating herself.

Suddenly, both officers stepped out of the cruiser and handcuffed her. She was told that she was under arrest for public intoxication and shoved into the back of the police cruiser. Several minutes later, a female officer, P.C. Biondi, arrived at the scene and conducted a pat down search of S.B. She checked her pockets and searched under her shirt and bra and confirmed that she was not concealing anything. [ 14 ] Following the roadside search, Constables Downie and Flores transported S.B. to the police station.

Both officers testified that during the ride, her demeanour was belligerent and that she was swearing at them. S.B. recalled Downie notifying dispatch that she was “belligerent”. She told him that she was not “belligerent” but says Constable Downie told her to ‘shut up”. S.B. also stated that the officers asked her if she was a prostitute. Constable Downie recalled questioning her about what she was talking about with the occupant of the white van on Rideau Street. S.B.’s arrival at the OPS Central Cellblock [ 15 ] The arresting officers and S.B. arrived at the OPS Central Cellblock shortly after 6 a.m.

The video tape shows the arresting officers removing her from the back of their police car and escorting her from the sally port into the cellblock. S.B. is unsteady on her feet and talking to the officers. [ 16 ] Once inside the police station, the arresting officers paraded S.B. before Sgt. David Christie who was the officer-in-charge of the cellblock. It was his responsibility to supervise the cellblock attendants who are called Special Constables. Generally, the Special Constables deal directly with the prisoners. Sgt.

Christie had no independent recollection of his interaction with S.B. nor did he make notes or complete any report of his dealings with her. Sgt. Christie testified that he would have been briefed by the arresting officers about the reason for S.B.’s arrest and other relevant information about her, such as whether she was a suicide risk or required medication. Ordinarily, the desk sergeant will also question a prisoner about his or her understanding of the reason for detention, medical problems and any needed medication. Sgt.

Christie testified that he would have assumed that the arresting officers brought S.B. to the cellblock because they had reasonable grounds to believe that she was a potential danger to her own safety or that of others. Constable Downie testified that he told Sgt. Christie the reason for arrest. He did not inform Sgt. Christie that S.B. was suicidal. Constable Downie also said that during the intake process, S.B. refused to answer any questions posed by Sgt. Christie about her personal circumstances or medical condition. The search of S.B. and the alleged sexual assault of S.B. by Sgt.

Desjourdy [ 17 ] S.B. was brought into the station during a shift changeover for cellblock personnel. As a result, she was lodged in a temporary holding room for about ten minutes pending a search by the Special Constables that was to take place at a search counter in the cellblock. [ 18 ] Sgt. Christie explained that the Special Constables are responsible for conducting a search of each prisoner brought into the cellblock. The arresting officer is required to give any assistance and provide relevant information to the Special Constables. In cross- examination, Sgt.

Christie testified that if a prisoner being searched becomes assaultive so that he or she is not “fully cleared”, the Special Constables are required to complete the search before the prisoner can be lodged in a cell. A judgment call sometimes has to be made as to how the prisoner will be “cleared”. After the prisoner is searched, OPS policy requires that the arresting officers remain with their prisoner at all times until the prisoner has been securely lodged in the cell by the Special Constables. Female Special Constables are responsible for searching female prisoners.

If a female Special Constable is not present, then normally a request is made by intercom for a female officer in the building to report to the cellblock. If no female officer is in the building, a female constable “on the road” would be summoned to the station to conduct the search. [ 19 ] The OPS policy in place on September 6, 2008, found in Exhibit 3-Tab 10, required cellblock attendants to search all prisoners prior to their being lodged in a cell. Items to be searched for included things that could be used to injure the prisoner or some other person.

It was also the responsibility of the officer-in-charge to ensure that all prisoners are searched by the cellblock officers. Special Constable Morris testified that it was OPS policy that every prisoner in the cellblock be searched “without exception”. No prisoner could be lodged in a cell without being fully cleared. This meant a thorough search to ensure that items such a weapons, needles, crack pipes,

knives and other items were removed from the prisoner’s clothing. [ 20 ] Special Constable Morris agreed in cross-examination that the search of bras can be particularly problematic. Bras can be used to secrete weapons inside the band. If the bra is made of foam, an officer might not be able to feel hidden weapons or objects which could include needles, razors, blades or small knives. Some bras are constructed with underwire which can be removed and then used as a weapon. A bra can also be used by a prisoner to harm herself. That had occurred before in the OPS cellblock.

Special Constable Morris had found metal push sticks used by persons who smoke crack cocaine in various pieces of clothing including bras. She was aware of a situation in the cellblock where a female had slashed her wrists with a crack pipe she had hidden in her bra. [ 21 ] Special Constable Bednarek, the only other cellblock attendant on duty during this incident, testified that he had personally observed prisoners removing underwire from their bras. The underwire can be used to scrape wrists, pick locks and jam locks.

It can be folded up with only a centimetre or two protruding between a prisoner’s fingers and then used to injure someone. Special Constable Bednarek said that items such as hypodermic needles can be hidden in the elastic band portion of the bra which could be accessed and used as weapon. [ 22 ] Special Constables Morris and Bednarek testified that Saturday mornings between 6:30 and 9:00 a.m. are typically very busy periods in the OPS cellblock. Prisoners need to be searched, fed and readied for departure to the bail court by 8:00 a.m.

When S.B. was brought to the station, there were other detainees in police cars also waiting to be booked into the cells. On September 6, 2008 the cellblock happened to be understaffed. There were supposed to be four Special Constables on duty but only Special Constables Morris and Bednarek were present. [ 23 ] Clip 8 of Exhibit 3 covers the time period between 6:21:52 -6:26:25 and shows the search of S.B. at the booking desk and the actions of Sgt. Desjourdy giving rise to the allegation of sexual assault.

The videotape shows the following sequence of events: 6:21:58- Special Constable Morris and Constable Flores lead S.B. to the search counter. 6:22:09- S.B. struggles with Special Constable Morris. 6:22:10-6:22:16- Special Constable Morris delivers knee strikes to S.B., grabs S.B. by the hair and pushes the back of S.B.’s head forward. 6:22:46-6:23:02- The struggle continues. Officers remove S.B.’s shoes. Special Constable Morris searches S.B. 6:22:39-6:23:38- S.B. is surrounded by officers. Special Constable Morris is searching S.B.

S.B.’s white socked feet are visible. 6:22:39-6:23:43-S.B. kicks backwards 2-3 times striking Special Constable Morris. 6:23:43- Special Constable Morris is limping in obvious pain. 6:23:45-6:23:51- Special Constable Bednarek and Constable Flores take S.B. to floor. 6:23:45- Sgt. Desjourdy is seen walking from area of the sergeant’s desk. 6:23:48- Sgt. Desjourdy continues to enter the search area. 6:24:58- Sgt. Desjourdy puts gloves on and leaves the area. Special Constable Morris is bent over and leaning on garbage can. 6:24:07-6:27:30- Sgt.

Desjourdy places a shield on S.B.’s lower body and holds the shield over her legs. Other officers are holding S.B.’s upper body and the officers appear to be talking to each other. At 6:24:30 Sgt. Desjourdy gets up and moves away from S.B. 6:24:32- Sgt. Desjourdy is up and walking away from S.B. while other officers are holding her on the floor. 6:24: 48- Sgt. Desjourdy goes to another area and retrieves a set of eye protection glasses and walks off screen while officers are still holding S.B. on the floor. 6:24:50- Sgt.

Desjourdy returns to the area with a pair of scissors in his hands and bends down over S.B.’s head while other officers are holding her 6:24:59- Special Constable Morris re-enters the area and is limping. Sgt. Desjourdy is cutting S.B.’s upper clothing with the scissors. 6:25:22 –Sgt. Desjourdy stands up. S.B.’s upper clothing has been cut down the back and her back is exposed 6:25:32- Sgt. Desjourdy and Special Constable Morris appear to be speaking to one another. He gives her the scissors. Sgt. Desjourdy bends over and is holding the shield on S.B.’s lower body. 6:25:40- Sgt.

Desjourdy appears to be talking to the officers. Sgt. Desjourdy moves the shield from S.B.’s lower body to area above her head 6:25:40-6:26:13- Sgt. Desjourdy is holding the shield over S.B.’s head as officers are preparing to move S.B. from that location. 6:26:13-6:26:23- Officers pick S.B. up from the floor and move her to another location. [ 24 ] Clip 9 of Exhibit 3 is an overhead camera shot of the events taking place at the booking counter from 6:21:52 to 6:23:54. There is a struggle at the booking counter.

S.B. is seen pulling her arm away from the desk and moving her right arm with a dangling open handcuff over the counter in the direction of Special Constable Bednarek who then takes hold of S.B.’s wrist and arm. S.B. appears to be

yelling. Exhibit 1-Tab 3 is the agreed upon evidence of Reverend Catherine O’Connor, an expert in speech and lip reading. She attempted to interpret what S.B. was saying during the struggle at the search counter. According to Reverend O’Connor, S.B. seemed to be saying the following: “No! A lot of “f-bombs” Something about “if my arm breaks” then ‘groping my ass’ or ‘going up my ass’ OW! You fucking...You’re breaking my... Something about “...say I’m resisting arrest, well fuck you...” Then she appears to be smiling to the cop on her left, and talking, then her expression changes and she says, “OW!

You Bitch” and other things but can’t read because her head is down” and then kicks out.” [ 25 ] In a second report, also part of Exhibit 1-Tab 3, Reverend O’Connor wrote “At approximately 6:22:28 -38 S.B. is hollering “ow” a lot, plus something about “you’re fuckin’ breaking my arm”, “if my arm breaks” and “if you break my arm” and something about “up my ass” and “resisting arrest, well fuck you”. At approximately 6:23:39 she appears to be hollering something like “Ow, you bitch”.” [ 26 ] In her statement S.B. provides her version of events.

The underlined portions are not admitted by the defence. “I recall becoming very upset when I was told that I would be searched again. I verbally protested another search stating that I had already been searched when I was arrested. I was not physically resisting. Neither officers responded to my objections about another search. Constable Flores, on my right side, and Special Constable Morris, behind me , led me towards a search table. By the time I reached the search table, my left hand was no longer secured by the handcuffs.

I do not remember when the handcuffs were removed from my left hand, or who unlocked them. In any event, my left hand was free and the handcuffs were dangling from my right hand. At some point, and I do not recall when or how, the handcuffs were removed from my right hand. Almost immediately, after I was brought to the search table by Constable Flores, another officer, later identified as Special Constable Bednarek, appeared to my left. I was pressed up against the search table, facing forward, flanked by Constable Flores on my right, Special Constable Bednarek on my left, and Special Constable Morris behind me.

Because I was caged in on all s i d e s by the three officers and the search t a bl e , I was unable to move my bod y . I could no t , and was not, flailing my arms and I did not move my lower body. I w as offeri n g l i ttle, if any. re s i s t a nc e . As a result of being pinned against the search table, and enclosed by the three officers, I w as in th e o fficers' c o m plete physical control. I w as e ffectiv e l y mo t i o nle s s and could only turn my head. I did, in fact, try to turn my head around in an effort to ask why I was being searched again.

I repeatedly asked this question and did not receive a response. All of a sudden, Special Constable Morris began barking "Face Forward." She grabbed my hair with both of her hands and jerked my head back towards her. Then at the same time, while still holding onto my hair with both of her hands, she violently thrust my head forwar d , forcefully rammed me into the search table, and sharply kneed me on the left side of my back twice. While I was completely startled by the viole n t manner of Special Constable Morris, I did not react. I could not , and did not, move my arms and my lower body remained motionless.

I submitted to being held and complied with the search. Special Constable Morris proceeded to brusquely and aggressively search me.She removed my shoes and the contents from my pockets. Then, without warning, she put her hands inside my pants. I felt her right hand on my upper thigh and my genital area . My immediate reaction was to move my legs in an effort to shake or move her hand away. I recall kicking my right leg backwards but I do not recall if I struck or made contact with anythin g . I did not move my upper body. Instantly, I was violently forced down to the ground and my chest was pinned to the floor.

I am uncertain as to how many officers were involved in forcing me to the ground. At the time, it felt like every inch of my body was trapped under the officers and I could not move. It was only after viewing the surveillance videos that I learned that a plexi-glass shield was held over my lower bod y . I was lying motionless on the floor with every part of my body held down.” [ 27 ] Special Constable Morris testified that at the search table, she directed S.B.to keep her face forward and that she put her hand on S.B. to try to move her around to face forward.

Special Constable Morris was concerned about the potential dangers of being spat on or bitten by the complainant. Special Constable Morris testified that ensuring the detainee keeps his or her face forward is an important element of the search protocol and a key prerequisite to start the search. S.B. did not follow the instruction to keep her face forward and kept turning to look directly at Special Constable Morris while she was yelling and screaming epithets.

S.B. was also physically resisting with her arms, pulling back and forth and refusing to turn. [ 28 ] Special Constable Morris testified that S.B.’s degree of resistance at the search counter was a “red flag” that the complainant may have been hiding something. Special Constable Morris had control of S.B.’s left hand and noticed that S.B.’s left wrist was not handcuffed. Morris considered the dangling open handcuff on S.B.’s right wrist to be a potential weapon which she described as a “hook” that could cause injury. Special Constable Morris felt S.B. tensing up and lowering her body weight.

Morris was losing control of the left arm and S.B. lunged toward Special Constable Bednarek with the dangling cuff. In order to control S.B.’s head from turning, Special Constable Morris delivered two “distraction” knee strikes and pushed her head to keep S.B.’s face in a forward position. She also took S.B. by the hair and tried to turn her head forward. [ 29 ] Special Constable Morris then attempted to clear the waistband area of S.B.’s pants by moving it away from the body and running her hand along the inside of it. S.B. was moving and twisting her body.

Special Constable Morris conceded that it was possible that her hand could have gone further down S.B.’s pants than she intended. Special Constable testified that she had not intended to conduct any kind of strip search including looking at S.B.’s crotch area. [ 30 ] From 6:22:23 to 6:22:39, S.B. is seen with her face pointing upwards and her mouth moving. It was agreed that S.B. was saying “groping my ass”, “going up my ass” or “up my ass”. Morris testified that S.B was swearing and verbally abusive. As Morris searched the waistband area, S.B. delivered 2-3 backward “mule-kicks” to Morris.

One kick struck Morris’ crotch area and the other struck Morris above her right knee. These kicks injured and incapacitated Special Constable Morris who was unable to put weight on her right leg. She was unable to continue her search of S.B.

[ 31 ] Special Constable Bednarek first observed S.B. after hearing a commotion at the special constables’ desk. He testified that S.B. was being very belligerent and resistant towards Special Constable Morris. S.B. was so angry that saliva was spitting out of her mouth. She was repeatedly turning her head towards Special Constable Morris. He believed that S.B. was intoxicated. He held the back of S.B’s neck with both hands. He saw that S.B.’s left hand had slipped out of the handcuff.

This was highly problematic since the open handcuff cuff dangling from S.B.’s right wrist was a hook which could be swung as a weapon. Special Constable Bednarek applied a wrist lock to get S.B. under control but was not successful. S.B. was moving her body around. Special Constable Morris delivered two knee strikes to S.B. but the complainant kept turning back. Special Constable Bednarek agreed with a suggestion made in cross examination that the application of knee strikes, as took place here, is an accepted police use of force technique.

The knee strike is intended to target the peroneal nerve and numb the leg in order to maintain control over the prisoner. From his years of experience as a cellblock attendant, Special Constable Bednarek saw the degree of resistance demonstrated by S.B. as an indication she was hiding something on her person. [ 32 ] Special Constable Bednarek witnessed S.B. “mule-kick” Special Constable Morris. He believed that Morris was injured as a result of the kicks and decided to “take [S.B.] down”. He then “grounded” S.B. by taking her arm behind her back and putting her face down in a controlled manner on the floor.

Bednarek then put S.B.in a “hammer lock” holding both of her arms behind her back. [ 33 ] At this point Sgt. Desjourdy entered the Special Constables booking area and placed a shield over the back of S.B.’s legs. Special Constable Bednarek testified while S.B. was on the ground, he was looking for items of jewellery, necklaces or chains that she could use to hurt herself. [ 34 ] In her statement S.B. gave her version of what happened next: “At this p o i nt, I noti c e d Sergeant Desjourdy approac h i n g w i th scissors in his h a n ds.

I asked him w h a t he w as doing with t he sc i s so r s a n d asked whether h e w as g o ing t o c u t my clo t h e s off. Se r g e ant D esjourdy l o o k e d me squarely in the ey e . I heard someone respond yes. (Sometime later) Sergeant Desjourdy crouched down and began to cut open my t-shirt and bra. He made several cuts along the sides, shoulders, and back of my clothe s . I felt my clothes falling aside . At some point, I urinated. I do not recall when it happened. I do recall the officers taunting me about wetting my p an t s a n d I felt s o m e o ne t u g g i ng at m y p a nts.

Several male officers surrounded me, grabbed me under my arms and hauled me to my feet. I was c l utchi n g a t t h e tatt e r ed remains o f my clothes to cover my exposed naked chest . I was very embarrassed and absolutely humiliated to be partially naked in front of all of the uniformed male officers. I felt sexually violated after having my clothes forcibly cut off me and then having to stand there partially nude . It was horrifying and I was very uncomfortable with being so exposed in a public place .

I was encircled by the male officers and led down a hall.” [ 35 ] In his notes, filed as Exhibit 18 and admitted as part of the Crown’s case for substantive purposes, Sgt. Desjourdy made the following verbatim entries: “-I was doing the shift change with Sgt. Christie when I heard some shuffling and some yelling -The Spl. Csts. were searching [S.B.], they regained control after a short struggle -Moments later I heard yelling and looked up. -[S.B.] was kicking Spc.

Cst Morris in the leg -I witnessed it 2-3 times. -I attended, got shield -I put it over her legs -She was intoxicated -had urinated in her pants -refused to be search -cut shirt and bra to prevent suicide. -placed in cell 46.” [ 36 ] In an “Investigative Action Report” report filed as Exhibit 17, also admitted as part of the Crown’s case, Sgt. Desjourdy wrote: “...I heard a struggle and looked up to see [S.B.] kicking at the rear of her about two to three times. I noticed that Sp/Cst Morris was expressing pain. I attended the area and told them to put [S.B.] on the ground.

I took the plastic shield to cover her legs as she was struggling and yelling. Once she was physically controlled I got a pair of scissors and cut her T-shirt and bra (at the rear) so that she would not hang herself and to clearly search her upper body. It is to note that Sp/Cst Morris was now out of the physical involvement, she continued to stand-by to do the visual search.” [ 37 ] After Sgt. Desjourdy cut S.B.’s shirt and bra, Special Constable Bednarek and Constable Flores lifted S.B. from the floor.

Bednarek testified that he instructed Constable Flores to ensure that S.B.’s top was kept in place so her chest area would not be exposed. S.B. was then led to a cell by the officers. Before putting S.B. in her cell, Special Constable Morris removed the cut clothing from the complainant. S.B. was left in her cell wearing just soiled pants and no top for over three hours before she was provided with replacement clothing.

The videotape shows Special Constable Morris at 9:47:28 leaving a disposable “blue suit” in S.B.’s cell. [ 38 ] Special Constable Bednarek told the court that Special Constable Morris removed S.B.’s top before putting her in the cell because the Special Constables “wouldn’t allow anyone, male, female to enter a cell with loose material like that”. He explained that officers could not “leave someone with material that could hurt them in the cells” and that it was the “safe thing to do”. Special

Constable Morris testified that she took away the cut bra and shirt at the cell door to make sure there were no weapons or contraband inS.B.’s clothing. Shredded items which can be used for self-harm are never left with a prisoner. Special Constable Morris was unable toexplain why S.B.’s stretchy pants were not removed if she was considered a suicide risk. Morris explanation was that the officers do notgive replacement clothing to prisoners who may be suicidal. S.B. did not make any suicidal comments to her but other officers couldhave had information that she did not have.

Special Constable Bednarek made the assessment of when it was safe enough for S.B. tohave replacement clothing, in this case a blue jump suit. Special Constable Bednarek testified that he made the decision to give S.B. the“blue suit” but would have cleared it with Sgt. Desjourdy. POSITIONS OF THE PARTIES The position of the Crown [39] The Crown submits that the evidence establishes beyond a reasonable doubt that the strip search conducted by Sgt. Desjourdywas for a retaliatory purpose, aimed at punishing and humiliating S.B. for her assault on Special Constable Morris.

As a result, hisconduct is not protected by s. 25 of the Criminal Code. It is also submitted the search was conducted in an abusive manner that had noregard for S.B.’s sexual dignity and privacy, objectively transforming what might otherwise have been a non-sexual context to a sexualone. [40] Crown counsel relies on the Supreme Court’s decision in R. v. Golden, 2001 SCC 83 , [2001] S.C.J.

No 81 whichholds that a strip search should not be conducted unless it is incident to a lawful arrest, performed in a reasonable manner and only incircumstances where the police have reasonable and probable grounds for concluding it is necessary in the particular circumstances. [41] The Crown submits that the strip search of S.B. was conducted without reasonable grounds and that its execution was bothexcessive and abusive. Sgt. Desjourdy stated in his notes and Investigative Action Report that one of the reasons he removed thecomplainant’s shirt and bra was to “prevent suicide”.

The Crown suggests this claim is improbable and incredible. Witnesses did not hearor see anything to indicate the complainant was suicidal, nor is there any evidence that Sgt. Desjourdy was ever provided withinformation that she was. The Crown says that the defendant’s explanation is belied by the fact that when S.B. was lodged in her cell,officers left her there for over three hours wearing soiled stretchy pants which could have been used for self-harm. [42] The other reason for the strip search that Sgt. Desjourdy put in his report was “to clearly search [S.B.’s] upper body”.

Again,the Crown argues that this explanation is improbable and incredible. There were no grounds for Sgt. Desjourdy to believe S.B. wasconcealing a weapon or evidence pertaining to the public intoxication charge. S.B. had already been searched at the roadside. There is noexplanation in the evidence for what Sgt. Desjourdy believed was the basis of his authority to search the complainant’s upper body. [43] The Crown argues that the manner in which the search was conducted was unreasonable and abusive.

Instead of directing thatS.B. be placed inside a nearby holding room to await the arrival of other female officers to complete the search, Sgt. Desjourdyconducted a strip search in a manner that was a complete departure from the guidelines set out in Golden, as well as Ottawa PoliceService internal policy governing the proper execution of a strip search. The Crown submits that because the defendant lackedreasonable grounds for the search and conducted the search in an unreasonable and abusive manner, he was not acting in furtherance of avalid law enforcement objective. As a result, Sgt.

Desjourdy’s conduct was neither justified nor protected by the provisions of s. 25 ofthe Criminal Code. Even if the law authorized Sgt. Desjourdy to use force in searching S.B., it is submitted that the degree of force usedwas excessive. The Crown submits that pursuant to s. 26 of the Criminal Code, the defendant is criminally responsible for his excessiveuse of force on S.B. [44] Furthermore, the Crown submits that the assault upon S.B. was committed in circumstances of a sexual nature within themeaning of s. 271 of the Criminal Code and therefore constituted a sexual assault. The Crown contends that when Sgt.

Desjourdy cut offS.B’s bra and shirt, he violated her sexual integrity and that he did so to punish, humiliate and demean her. As well, it is contended by theCrown that the strip search was conducted in an abusive manner without regard to her sexual dignity and privacy.

The search wasconducted (1) in a non-private area; (2) subject to continuous video surveillance and recorded; (3) occurred in the presence of and withthe participation of male officers; (4) involved the direct application of force and forcible removal of clothing in circumstances whereS.B. was not provided an opportunity to remove them herself; (5) was of a long duration commencing in one room and, (6) involved amarch from one room to another past the cells of other prisoners.

The Crown concedes that there were exigent circumstances to justifythe officers grounding S.B. in order to gain control of her after she kicked Special Constable Morris. However, when Sgt. Desjourdychose to cut S.B.’s’ shirt and bra, exigent circumstances no longer were present. S.B. was prone, face down on the floor and passive. It issubmitted that the abusive manner of the search was exacerbated by Sgt. Desjourdy’ s decision as officer- in-charge of the cell block toleave S.B. in her soiled pants and topless in her cell for more than three hours. [45] In

summary, the Crown counsel’s central argument is that the common law authorizes an intrusion on a person’s sexual dignityand integrity only where it is in furtherance of valid law enforcement objective such as searching for weapons or evidence of the offencecharged. Mr. Webb says that the law does not authorize what occurred in this case – a violation of S.B.’s sexual integrity for the purposeof intimidating, punishing or humiliating the prisoner.

In his written submissions, Crown counsel argues: “Denigration of the complainant’s sexual dignity and integrity were the means through which the defendant effected her punishment andhumiliation. The defendant’s own actions made the context sexual. Whether the search is conducted abusively, or the officer specificallyintended to punish or humiliate, the message is the same, namely I have control over your sexual dignity and privacy, and the power totake it away.

This necessarily supports a finding that the impugned assault occurred in a sexual context.” The position of the defence [46] The defence submits that the Crown has not proven to the requisite standard that Sgt. Desjourdy engaged in any criminal

conduct in his dealings with S.B. With respect to the charge of sexual assault, it is submitted that there is no evidence of any sexual orcarnal element in Sgt. Desjourdy’s actions. The Crown’s own case featured several police officers and Special Constables present duringthe search of S.B. who saw and heard nothing to even remotely suggest that Sgt. Desjourdy was motivated by any desire to punish,humiliate or put S.B. in her place. It is submitted that there is no reliable evidence of any taunts, sexual epithets or comments by Sgt.Desjourdy toward the complainant. The defence argues that Sgt.

Desjourdy never touched the complainant’s body in any sexual contextand, in fact, used the safety scissors so as to avoid touching any part of S.B.’s body. According to the police witnesses, what Sgt.Desjourdy did was the least intrusive method available in the circumstances to ensure that S.B. was not concealing weapons or objectswhich could be used as weapons or contraband. There were no words or gestures on the part of Sgt. Desjourdy to support the Crown’stheory that he sought to punish and humiliate S.B. [47] It is submitted that any departure by Sgt.

Desjourdy from the Golden guidelines for the conduct of strip searches was justifiedby the existence of exigent circumstances resulting from S.B.’s assaultive, volatile and unpredictable behaviour at the search counter.Unlike the situation in Golden, the defendant and his colleagues were dealing with a violent detainee. It is submitted that even if the stripsearch failed to accord with the Golden guidelines and amounted to a s. 8 Charter breach, it does not follow that Sgt. Desjourdy engagedin criminal conduct. It is submitted that Sgt. Desjourdy’s actions are protected by s. 25 of the Criminal Code.

The defence position is thatthe defendant cut S.B.’s bra and shirt in order to prevent any potential suicide attempt and to ensure that S.B. could be properly “cleared”by the search of her upper body before she could be safety placed in a cell. It is submitted that the evidence establishes that Sgt.Desjourdy acted reasonably in the execution of his duty. Finally, the defence submits that the officer never used excessive force withinthe meaning of s. 26 of the Criminal Code.

APPLICABLE PRINCIPLES OF LAW Generally [48] This is a criminal case and every person charged with a criminal offence is pre-sumed to be innocent until the Crown proveshis or her guilt beyond a reasonable doubt. [49] The burden or onus of proving the guilt of Steven Desjourdy beyond a reasonable doubt rests upon the Crown and never shifts.Sgt. Desjourdy does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations.

I may onlyfind the defendant guilty if, after considering all of the evidence, I am satisfied that the Crown has proven its case beyond a reasonabledoubt. [50] I remind myself that a reasonable doubt may arise from the evidence or as a result of a conflict in the evidence or because of alack of evidence. It is my duty to consider the evidence carefully and dispassionately and to weigh without sympathy or prejudice for oragainst anyone involved in the proceedings.

Then, after reflecting upon all of the evidence of each individual witness, I must weigh it andmake a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence, or none of the evidence givenby him or her.

And after considering the whole of the evidence presented in the case by both the Crown and the defence, if any, I mustreach a conclusion as to guilt to the requisite standard or otherwise acquit. [51] I further remind myself that the object in assessing evidence in a criminal case is not to choose one witness over another; it is todetermine whether the Crown on the whole of the evidence has proven the accused’s guilt beyond a reasonable doubt. The ultimatequestion is not which side is telling the truth, but rather, on all of the evidence, whether the case was proven beyond a reasonable doubt.

Sexual assault [52] The defendant has pleaded not guilty to a charge of sexual assault. In order for Sgt. Desjourdy to be found guilty of sexualassault, the Crown must prove each of these essential elements beyond a reasonable doubt: i. that Sgt. Desjourdy intentionally applied force to S.B.; ii. that S.B. did not consent to the force that Sgt. Desjourdy intentionally applied; iii. that Sgt. Desjourdy knew that S.B. did not consent to the force that Desjourdy applied; and iv. that the force that Sgt.

Desjourdy applied took place in circumstances of a sexual nature. [53] The offence of sexual assault was defined by the Supreme Court of Canada in R. v. Chase, (SCC), [1987] S.C.J. No. 57 at para. 11 as follows: Sexual assault is an assault within any one of the

definitions of that concept in s. 244(1) of the Criminal Code which is committedin circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whetherthe impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual orcarnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269).

The part of the bodytouched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all othercircumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J.Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) The intent orpurpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in consideringwhether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, itmay be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive issimply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[54] In considering whether the test is met, the central questions to be addressed are whether the assault: (1) violated the sexualintegrity of the victim; and (2) occurred in circumstances of a sexual nature: R. v. K.B.V., (SCC), [1993] S.C.J. No 78at para. 3. Sexual assault is a general intent offence and proof of the accused’s purpose in committing the offence is not an essentialelement.

As observed in Chase at para. 12, ‘the factors which could motivate a sexual assault are said to be many and varied”. [55] The Crown rightly submits that proof that the accused’s purpose was sexual gratification is not required. It is common groundthat Sgt. Desjourdy was not motivated by sexual gratification but, as Mr. Webb points out, that is not a bar to a finding of guilt. As theOntario Court of Appeal made clear in R. v.

V.(K.B.), (ON CA), 1992 O.J. 561 (C.A.) at para. 15: ...the presence or absence of sexual gratification is merely one of the factors to be considered in determining whether a sexual assault hasoccurred (see Chase, supra). Sexual assault,

an act of power, aggression and control, does not require sexual gratification. In some cases,it is inimical to it. In my view, the absence in these circumstances does not detract from the finding that the assault here was sexual in itsoverall context. [56] In V. (K.B.) the accused was convicted of sexually assaulting his three year old son. He grabbed his son in his genitals area as adisciplinary response to the child having done the same to others, including the accused.

There was no evidence that the accused’sbehaviour was for his own sexual gratification. [57] The Supreme Court in Chase endorsed the objective test set out by the Alberta Court of Appeal in R. v.

Taylor [1985] A.J. 821(C.A), at para 19; “when viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonableobserver?” Police authority to strip search and exigent circumstances [58] The Crown submits that the accused engaged in an unlawful and unjustified strip search of the complainant which amounted toa sexual assault of S.B.. [59] It may be recalled from the evidence that S.B. was subject to a pat-down or frisk search over her clothing by Constable Biondiat the scene of her arrest.

While the pockets were examined, no clothing was removed and no physical force was applied. It was non-intrusive and permitted in law as an incident to arrest for the purpose of officer safety. In contrast with this common search, a strip searchis defined as the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’sprivate areas, namely genitals, buttocks, breasts (in the case of a female) or undergarments: Golden at para. 47.

Strip searching is one ofthe most intrusive manners of searching and also one of the most extreme exercises of police power: R v. Flintoff, (ONCA), [1998] O.J. No. 2337 (C.A.) at para. 24. [60] A helpful review of the legal principles governing the police authority to conduct strip searches is provided by Fuerst J. in the recent decision of R. v. Lee, [2013] O.J. No. 637 at paras. 29-34 as follows: In Golden, above, the Supreme Court of Canada addressed whether the parameters of the common law power of search incident to arrestwere broad enough to encompass the authority to strip search.

In that case, the accused was arrested for drug trafficking in a sandwichshop and twice strip searched there. The first strip search occurred on a landing at the top of an interior stairwell, with no-one other thanthe accused and the police officer present. The officer undid the accused's pants, pulled back the pants and long underwear, and lookedinside the underwear. He saw plastic wrap containing a white substance protruding from the accused's buttocks. When he was unable toretrieve the plastic wrap, he took the accused into the shop.

There, in the presence of other arrestees, several police officers, and theowner of the shop, police officers lowered the accused's pants and underwear to his knees as they bent him over a table, such that hisbuttocks and genitalia were completely exposed. They attempted to seize a package of drugs from his buttocks and eventually succeededin doing so. At trial and on appeal the accused contended that the police violated

section 8 of the Charter. He sought the exclusion of the drugs undersection 24(2). The Supreme Court of Canada held that the power of search incident to arrest includes the power to strip search, but that power is subjectto limitations.

The court adopted the following definition of the term "strip search", set out at paragraph 47 of the majority judgment: "[T]he removal orrearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals,buttocks, breasts (in the case of a female), or undergarments." The court expressed at paragraph 90 that all strip searches are "inherently humiliating and degrading for detainees regardless of themanner in which they are carried out".

For that reason, strip searches cannot be carried out simply as a matter of routine policedepartment policy applicable to all arrestees. The court held that a strip search is only constitutionally valid as part of the common law power of search incident to arrest where it isconducted as an incident to a lawful arrest.

A strip search will be incident to a lawful arrest in two situations: where it is conducted todiscover evidence related to the reason for the arrest itself; and/or for the purpose of discovering weapons in the arrestee's possession if afrisk or pat-down search reveals a possible weapon secreted on the arrestee's person or the circumstances of the case raise the risk that aweapon is concealed on the arrestee's person. The police must establish reasonable and probable grounds for concluding that a stripsearch is necessary in the particular circumstances of the arrest.

Finally, the strip search must be conducted in a manner that does not infringe

section 8 of the Charter. The court set out a framework toguide police officers in the conduct of strip searches incident to arrest, to ensure that they interfere with the privacy and dignity ofarrestees as little as possible. Generally, strip searches should only be conducted at the police station. The court drew a distinction between strip searches "immediately incidental to arrest", and searches of persons entering the prison

environment. The court said at paragraph 96 of the majority judgment, The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means ofjustifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such asintoxicated individuals held overnight in police cells". [Emphasis added.] The court appeared to endorse the decision in R. v. Coulter, [2000] O.J. No. 3452 (C.J.).

There Duncan J. observed that while stripsearching can be justified when an individual is being introduced into the prison population to prevent him or her from bringing incontraband or weapons, different considerations arise where an accused is being held for only a short time in police cells and will not bemingling with the general prison population.

The court in Golden said at paragraph 97 of the majority judgment, "While we recognizethat police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves orpolice officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees." [61] The defence takes the position that Sgt. Desjourdy’s strip search of the complainant was justified by the presence of exigentcircumstances.

In Golden at para. 102 the Supreme Court recognized that exigent circumstances may necessitate a strip search in thefield as opposed to a police station “where there is a demonstrated necessity and urgency to search for weapons or objects which could beused to threaten the safety of the accused, the arresting officers or other individuals.” [62] In R. v. Kelsy, 2011 ONCA 605 , [2011] O.J. No. 4159 (Ont.

C.A.), Justice Rosenberg made these observationsregarding the doctrine of exigent circumstances at para 35: However, whether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the natureof the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstancesare extraordinary and should be invoked to justify a violation of a person's privacy only where necessary. Sopinka J. made that point inR. v. Feeney at para. 52: According to James A.

Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances ariseusually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. [63] I also note the comment of Justice Rosenberg, in para 33, querying whether the reasonable and probable grounds standard forconducting a strip search other than in the field will always be required when there are exigent circumstances relating to officer safety.He states: I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstancesdoctrine is invoked to justify a search for the purpose of protecting the public or police officers.

It may be that a lesser standard, such asarticulable cause or reasonable suspicion, as codified in s. 529.3(2)(a), will be appropriate in some circumstances. Thus, see R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.) at p. 759. The defence of justification in s. 25 of the Criminal Code [64] The defence maintains that in all of his dealings with S.B., Sgt. Desjourdy was acting in the lawful execution of his duties for avalid law enforcement purpose.

It is submitted that his conduct is protected by s. 25 of the Criminal Code which states: Every one who is required or authorized by law to do anything in the administration or enforcement of the law...(

b) as a peaceofficer or public officer,...is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using asmuch force as is necessary for that purpose. [65] Thus, the s. 25 justification applies to a peace officer who: (1) does something that he is required or authorized by law to do inthe administration or enforcement of the law; (2) has reasonable grounds to believe that what he is doing is required or authorized bylaw; and (3) uses no more force than is necessary in the circumstances.’ The s. 25 justification applies to actions authorized by statute orat common law.

Section 26: Excessive force [66] The Crown argues that even if the strip search in this case was authorized by law, Sgt. Desjourdy used excessive force and thisconstituted an assault within the meaning of ss. 265 (1) and (2). The Crown relies on s. 26 of the Criminal Code which states: Every one who is authorized by law to use force is criminally responsible for any excess of force thereof according to the natureand quality of the act that constitutes the excess.

ANALYSIS [67] Let me begin with the arrest of S.B. [68] I accept the evidence of Constables Flores and Downie that S.B. was drinking beer in public on Rideau Street around 5:30 a.m.on September 6, 2008. This is an offence under s. 3(2) of the Liquor Licence Act. The officers established her identity and checked thepolice computer system to determine if there were any outstanding bail conditions or warrants for her arrest. There were none. Theofficers were prepared to caution S.B. and send her on her way home.

On the evidence, I accept the testimony of the two officers thatS.B. started to walk away and then returned to the police cruiser where she repeatedly demanded to know why the officers had stopped

her. I accept their testimony that S.B. was intoxicated, verbally confrontational and profane. Constable Downie testified he was “concerned that given her conduct, she would be a potential danger to herself or others, if she were not arrested, given her state.” He ordered his officer-in-training, Constable Flores, to arrest S.B. Constable Jennifer Biondi was summoned to the scene of the arrest where she conducted a brief and uneventful pat-down search of S.B.

Then the arresting officers drove S.B. to the Central Cellblock. [ 69 ] Section 2(5) of the Liquor Licence Act permits a police officer to arrest a person who is in an intoxicated condition in a public place if “in the opinion of the police officer, to do so is necessary for the safety of any person”. The evidence does not establish that Constables Downie and Flores had reasonable grounds to arrest S.B. She had not assaulted or threatened the officers or anyone else. Constable Downie said that he ordered Constable Flores to arrest S.B. because he believed that S.B. was a danger to herself or others.

He was concerned that if S.B. was not arrested, she might get into a fight with someone on her way home. This explanation, in my view, amounts to little more than a self-serving and speculative excuse for the arrest of the complainant. S.B. was certainly angry and profane with the officers but that did not make her a threat to herself or anyone else. It seems to me that the more likely reason for this arrest was that S.B. had the temerity to challenge the officers’ decision to stop and investigate her.

Simply put, there was no credible evidence that S.B. posed a risk to herself or anyone else when she protested against being stopped and questioned by the officers.

Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned”. I am driven to conclude on the evidence that S.B.’s arrest and detention constituted a serious violation of that right. [ 70 ] The videotape evidence shows that S.B. was unsteady on her feet as she entered the booking area of the police station through the sally port. Her feet were crossing over as the officers escorted her into the cellblock and she appeared intoxicated. She was paraded before Sgt. David Christie, the officer-in-charge of the cellblock at that time.

There is no audio recording of the interaction between them. No record was kept of the information given by the arresting officers to Sgt. Christie for the arrest. For his part, Sgt. Christie made no notes or report of his dealings with S.B. The sergeant-in-charge of the cellblock is supposed to perform a “gatekeeper” function and assess whether or not a detainee arrested for public intoxication continues to be a danger and requires detention or whether she can be released.

Given the lack of evidence concerning S.B.’s alleged dangerousness prior to her arrest and the absence of any reliable record of what occurred at the booking desk, it is very difficult to understand why Sgt. Christie believed there were sufficient grounds to continue holding S.B.in police custody. [ 71 ] Ottawa Police Service policy, seen in Exhibit 2-Tab 10, required the Special Constables to search any prisoner coming into the cellblock before lodging the individual in a cell.

In particular, the Special Constables were to search for weapons or potential weapons that could be used to injure the prisoner or some other person. There is no issue that the common law also authorizes a search for this purpose. As well, OPS policy required that the arresting officer be present during the search in order to provide assistance and relevant information to the Special Constables. After the prisoner is searched, he or she is to be escorted to and placed in a cell. The arresting officer is required to accompany the Special Constable until the prisoner is securely lodged in the cell.

This booking process is subject to video monitoring. In September 2008 there was no audio component to the videotape. [ 72 ] Being the only female cell attendant on duty, Special Constable Morris was tasked with searching S.B. There is no dispute that the search at the booking counter was never intended to be a strip search. I accept the testimony of Special Constable Morris that her objective was to look and feel “on the surface of the clothes for anything that might be hidden”. [ 73 ] There was a brief delay in S.B.’s booking due to a cellblock staff shift change.

She was placed without any difficulty in a temporary holding room. Approximately ten minutes later, officers led S.B. to the Special Constables’ search counter. [ 74 ] The Crown and defence correctly submit that the issue of the lawfulness of S.B.’s arrest should play no role in the court’s assessment of the legality of Sgt. Desjourdy’s conduct. There is no evidence that Sgt. Desjourdy had any knowledge of the circumstances of S.B.’s arrest. He was entitled to presume that S.B. was lawfully arrested and that Sgt. Christie had properly determined that she required to be detained in the cellblock. [ 75 ] Sgt.

Desjourdy’s verbatim notes, which form part of the prosecution case and are admissible for the truth of their contents, state the following: “-doing the shift change when [he] heard some shuffling and some yelling. -the Spl. Csts. were searching [S.B.], they regained control after a short struggle. -moments later I heard yelling and looked up. -[S.B.] was kicking Spc. Const Morris in the leg. I witnessed it 2-3 times. I attended, got shield. I put it over her legs. She was intoxicated, had urinated her pants.” [ 76 ] I accept Sgt.

Desjourdy’s uncontradicted account as to how he first became aware of S.B.’s presence in the cellblock and why he assisted the Special Constables dealing with the complainant. [ 77 ] S.B. was upset and angry because of the circumstances of her arrest and detention. It is also likely that her anger was fuelled, at least in part, by her earlier alcohol consumption. It is clear from the videotape evidence that by the time S.B. was led to the booking counter, she was not willing to cooperate in the search process.

I accept the testimony of Special Constable Morris that she instructed S.B. by word and gesture to keep her face forward. S.B. would not comply. The videotape shows S.B. continuing to face Special Constable Morris. From her experience and training, Special Constable Morris was understandably concerned that S.B. might spit on her or even bite her. I accept Special Constable Morris’ testimony that keeping a prisoner looking forward is a reasonable and prudent element of the search protocol and a basic prerequisite for commencing a search.

S.B. was yelling and directing crude sexual epithets at Special Constable Morris. S.B. became more upset when she was told that she would be searched again. She told Special Constable Morris that she had already been searched at the time of her arrest. The videotape shows S.B. offering resistance at the search table by pushing and pulling her body back and forth. [ 78 ] Special Constable Bednarek testified that he first became aware of S.B. being in the cellblock when he heard a commotion at

the Special Constables’ desk. He testified that S.B. was “very belligerent and resistant” as well as directing vulgar epithets at Special Constable Morris. He said that S.B. was so angry that, at times, saliva was spitting out of her mouth as she swore at Special Constable Morris. [ 79 ] By the time she had reached the search counter, S.B. had slipped out of one of her handcuffs. Special Constable Morris had control of S.B.’s left hand and observed the dangling handcuff on S.B.’s right wrist. Morris and Bednarek both testified that the open handcuff was a hook-shaped potential weapon.

Special Constable Bednarek was at the search counter assisting Morris when he also observed the dangling handcuff. He grabbed and put S.B.’s right wrist in a wrist-lock. Special Constable Morris felt S.B. then tense up and lower her body weight. I accept Special Constable Morris’ testimony that at that moment she felt she was losing control of S.B.’s left arm. She felt S.B. pushing and pulling and then lunging with her right arm with the dangling handcuff in the direction of Special Constable Bednarek. Special Constable Morris grabbed S.B.’s hair and pushed the complainant’s head forward.

Morris also delivered two knee strikes to S.B.’s outer left thigh. I accept as reasonable the evidence of Special Constables Morris and Bednarek that the use of knee strikes is a standard use of force “distraction” technique officers are trained to employ in a situation such as this in order to gain control over a prisoner who is physically resisting. [ 80 ] Special Constable Morris then commenced her search. She first focussed on the waistband area of S.B.’s stretchy pants by moving the waistband away from S.B.’s body and running her hand along the inside of it.

I believe Special Constable Morris’ testimony that she did not intend to look down S.B.’s pants or put her hand into the complainant’s crotch area. However, during this part of the search, S.B. was physically resisting by twisting and turning her body. As a result of S.B.’s movements, Special Constable Morris’ hand went lower than the top of the complainant’s waistband as the officer attempted to feel for contraband or weapons. S.B. reacted by delivering two “mule-kicks” to Special Constable Morris. One kick was to her crotch area and the other struck Morris above her right knee.

These kicks injured and incapacitated the officer. The videotape shows Special Constable Morris in obvious pain. She told the court that she had never been injured by a prisoner before and that this was the first time she had been rendered physically unable to perform her duties. As a result of this assault, Special Constable Morris could not complete the search. S.B.’s upper body area had yet to be checked for weapons or contraband. [ 81 ] Special Constable Bednarek, assisted by Constable Flores, took S.B. to the ground.

The videotape evidence shows that they did so in a controlled manner and without causing any injury to S.B. I accept their evidence that it was necessary to ground S.B. for her own safety and that of the officers. Special Constables Morris and Bednarek testified that the degree of resistance coming from S.B. to being searched raised a “red flag” in both their minds that she was concealing a weapon, potential weapon or contraband.

I accept that their shared concern was reasonable and based on their training and years of experience dealing with detainees in the cellblock. [ 82 ] Ordinarily, the sergeant-in-charge of the cellblock does not participate in the physical search of a prisoner. In these unusual circumstances, Sgt. Desjourdy chose to intervene. S.B. was lying face down on her stomach with her arms being held by Special Constable Bednarek and Constable Flores. As seen in the videotape, Special Constable Morris was limping around the search room in pain. S.B. was prone and, at this point in time, not resisting. Sgt.

Desjourdy retrieved a shield and held it on the back of S.B.’s legs. The videotape shows Sgt. Desjourdy saying something to the other officers who were kneeling or standing around S.B. Special Constable Morris went off-screen to another area of the search room. Sgt. Desjourdy is seen facing in her direction and saying something. I accept Special Constable Morris’ testimony that she was telling Sgt. Desjourdy and the other officers that she did not consider S.B. “a clearly searched person, safe to stay in the cellblock”.

It is entirely plausible that Special Constable Morris would have informed her colleagues of the status of her search of S.B. prior to being injured. Sgt. Desjourdy then got up while Constable Downie took his place holding the shield on the back of S.B.’s legs. Special Constable Bednarek did not recall hearing any explanation for the use of the shield. However, because the officers were dealing with “an active assaultive person”, he believed the shield was used to prevent further injury to anyone else.

Special Constable Morris described the shield as a concave-shaped piece of plexi-glass, used by the officer to prevent being spat on or to control the limbs of a resistant prisoner. Given the level of S.B.’s resistance at the search counter, and in particular, her assault on Special Constable Morris, the use of the shield by the officers was, in my view, a reasonable technique to maintain control of S.B. [ 83 ] Constable Downie, one of the arresting officers, also happens to be a use of force instructor at the Ottawa Police Service Professional Development Centre.

As was the case with Special Constables Morris and Bednarek, S.B.’s assaultive behaviour, volatility and resistance to being searched caused Constable Downie to be concerned that S.B. was concealing something. Constable Downie was also aware that S.B. had slipped out of one of her handcuffs. Constable Downie was of the view that the actions used by Special Constables Morris and Bednarek and Sgt. Desjourdy to control S.B. involved accepted and appropriate use of force techniques which OPS officers and Special Constables are trained to use in these circumstances.

Those techniques included the wrist lock and the controlled grounding method used by Special Constable Bednarek, the forceful moving of S.B.’s head forward and distracting knee strikes used by Special Constable Morris and the use of the shield to control the complainant’s legs by Sgt. Desjourdy and himself. [ 84 ] It is true that neither the Crown nor defence sought to qualify Special Constable Downie as a use of force expert. Nevertheless, the Crown did not take issue with the use of force by any of the officers or Special Constables prior to the point in time when Sgt. Desjourdy cut off S.B.’s shirt and bra.

On the contrary, Crown counsel conceded that exigent circumstances existed at the time when the officers grounded S.B. The evidence is persuasive that Special Constables Morris and Bednarek employed a number of physical control techniques they had been trained to use in order to control S.B. and none of them involved the use of weapons. The Ontario Use of Force Model in place at the time, found in Exhibit 2-Tab 31, required officers to continuously assess the situation and select the most reasonable options relative to the circumstances perceived at the time.

I am satisfied on the evidence that the Special Constables did what the Use of Force Model required them to do in this situation. [ 85 ] There is, of course, no dispute that Sgt. Desjourdy then cut off S.B.’s shirt and bra exposing her back to the officers present. He used a pair of scissors described during this trial as “safety” scissors which are kept in the cellblock. They are designed and sometimes used for cutting clothing during the course of a search.

The scissors are blunt-edged in order to reduce the risk of harm to the detainee and the cellblock attendant using them. [ 86 ] Crown counsel correctly characterizes Sgt. Desjourdy’s cutting of S.B.’s top and bra as a strip search. That is because the Supreme Court of Canada in Golden at para. 47 defined a strip search to be “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or

undergarments.” S.B.’s bra is, of course, an undergarment. [ 87 ] The Crown contends that Sgt. Desjourdy’ s real purpose for cutting S.B.’s top and bra was retaliatory, aimed at punishing and humiliating her for assaulting Special Constable Morris. If that was his proven purpose, Sgt. Desjourdy’s conduct would not be protected by the justification provisions of s. 25 of the Criminal Code and would constitute a sexual assault. Defence counsel did not argue otherwise. [ 88 ] In his Investigative Action report, Sgt. Desjourdy stated that he cut S.B.’s shirt and bra “so that she would not hang herself”.

The Crown says that this explanation is not credible. Mr. Webb pointed out in submissions that the police witnesses had no recollection of the defendant ever explaining why he cut off the complainant’s shirt and bra. Nor do Sgt. Desjourdy’s notes explain why he thought S.B. was suicidal. It is submitted that there is no evidence to indicate that S.B. was suicidal or that Sgt. Desjourdy was ever informed that she was. The Crown asks: if Sgt.

Desjourdy really thought S.B. was suicidal, why would he then leave her in a cell for hours wearing stretchy pants she could have used to harm herself? [ 89 ] The defendant’s other stated reason for cutting off S.B.’s shirt and bra was “to clearly search her upper body”. The Crown submits that there is no evidence to explain why the accused believed it was necessary to search S.B.’s upper body or what circumstances led him to think that S.B. was concealing a weapon or contraband.

As stated at para. 94 in Golden , the mere possibility that an individual may be concealing evidence or weapons on her person would not be a sufficient basis to justify a strip search. The Crown contends that Sgt. Desjourdy contravened most, if not all, of the guidelines set out in Golden and that this strip search was therefore unlawful. [ 90 ] As well, Crown counsel points to three pieces of circumstantial evidence which, he submits, go to show that the defendant’s purpose was retaliatory. First, Sgt. Desjourdy cut off the shirt and bra just moments after S.B. assaulted Special Constable Morris.

Second, S.B. said in her statement that while she was on the ground, officers taunted her about wetting her pants. Third, there is the fact that S.B. was left in her cell topless and in soiled pants for over three hours. [ 91 ] I agree with the Crown that there was there was little, if any, reason for cellblock personnel, including Sgt. Desjourdy, to believe that S.B. was a suicide risk. I accept the evidence of the Special Constables and Sgt. Christie that the possibility of self-harm is always a concern with respect to any detainee, particularly one arrested for public intoxication.

However, a general concern about suicide risk without more case-specific evidence is not a lawful basis for conducting a strip search. There is no credible basis in the evidence to say that the risk of S.B. harming herself was such that she needed to

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