R. v. Hall, 2019 BCPC 152

Citation: R. v. Hall 2019 BCPC 152 Date: 20190311 File No: 221168-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JENNIFER LEIGH HALL ORAL RULING RE SECTION 24(1) CHARTER APPLICATION OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: M. Randall Counsel for the Accused: A. Jaswal Place of Hearing: Surrey , B.C. Dates of Hearing: September 4, 5; December 4, 2018 Date of Judgment: March 11, 2019

A Corrigendum was released by the Court on July 12, 2019. The corrections have been made to the text and the Corrigendum isappended to this document. INTRODUCTION [1] THE COURT: Jennifer Leigh Hall is charged with two counts of possession for the purposes of trafficking drugs, contrary to s.5(2) of the Controlled Drugs and Substances Act. One count related to heroin blended with fentanyl; the other count involved cocaine. [2] On 19 January 2017, the police were conducting surveillance on a residence they believed was involved in the drug trade. Afterattending that residence, Ms.

Hall's vehicle was surveilled as it attended three other locations for short durations. The police arrested Ms.Hall and searched her vehicle. The various packaged drugs, cell phones and other items associated to the drug trade were seized from thevehicle. [3] Ms. Hall was taken to the Langley RCMP detachment where she was then strip searched in a holding cell while recorded byvideo camera. The female police officer conducted what she considered to be a routine "cell search" to ensure that Ms. Hall did not haveany weapons or evidence on her person. She directed Ms.

Hall to remove her bra so it could be examined and swiped her finger underMs. Hall's breasts. A single, unwrapped rock of crack cocaine was located under a breast. [4] Counsel sought a voir dire at the outset of the trial to determine if the drug evidence seized from the vehicle was admissible attrial. On 5 September 2018, I determined that the arrest and vehicle search were lawful. [5] The Crown conceded that the search of Ms. Hall at the detachment constituted a strip search. I made the following legalfindings about the strip search: (

a) The searching officer considered the removal of Ms. Hall's bra to be a routine "cell search", not a strip search. (

b) However, the searching officer also testified that she had subjective grounds to perform a strip search based on an allegedstatement by Ms. Hall. I was unable to find that she had the necessary objective grounds to perform a strip search. (

c) I also determined that the strip search was not conducted in a lawful manner because the officer failed to comply with severalimportant requirements of the Supreme Court of Canada decision in R. v. Golden, 2001 SCC 83. [6] Mr. Jaswal, for the defence, no longer applies to exclude the drug evidence.

The defence now applies for a judicial stay ofproceedings pursuant to s. 24(1) of the Canadian Charter of Rights of Freedoms (henceforth referred to as the Charter), due to theoverall context and circumstances in which the strip search occurred. [7] Essentially, the defence argues that this routine, so-called "cell search" amounts to a systemic, unlawful strip search of femalearrestees, purportedly for evidentiary and safety reasons. In addition, the manner of Ms.

Hall's search exacerbated the privacy violations.As such, the police caused prejudice that will be perpetuated through the conduct of the trial or by its outcome. He argues that the courtmust distance itself from such police conduct. The defence also submits that no other remedy is reasonably capable of removing thatprejudice. [8] Ms. Randall, for the Crown, opposes the defence application on the basis that the unconstitutional conduct was not systemic.Rather, it was limited to one female officer who may not have complied with national policy nor regional practice.

The Crown arguesthat the unconstitutional manner of the strip search has been remedied by the Langley RCMP detachment. She also argues that there isanother remedy that is reasonably capable of removing the prejudice, such as a reduction in sentence, to reflect the Charter breach inaccordance with the recent Supreme Court of Canada decision in R. v. Nasogaluak, 2010 SCC 6. Therefore, the drastic remedy of ajudicial stay of proceedings is not necessary, according to the Crown.

ISSUES [9] I am required to assess what occurred in this case and apply the legal principles that govern if and when a judicial stay ofproceedings can be imposed. I must consider the following legal issues in this case: (

a) Is the state conduct regarding allegedly routine strip searches and the videotaping of Ms. Hall's search sufficiently serious toimpact the public sense of decency and fair play? (

b) Has the defence established, on a balance of probabilities, that the state conduct impacts Ms. Hall's right to a fair trial or theintegrity of the justice system? (

c) If so, is the prejudice ongoing? In other words, is the state conduct systemic? (

d) Has the defence established on a balance of probabilities that there is no other less drastic remedy available; and (

e) Is a judicial stay required after I balance the interests in favour of granting a stay against society's interest in having a trial on themerits? [10] The defence relied upon the following cases: R. v. Hjerpe, 2017 BCPC 41; R. v. Hendrickson, 2013 ONCJ 729. [11] The Crown replied upon the following cases: R. v. Regan, 2002 SCC 12, also citing R. v. O'Connor, (SCC),[1995] 4 SCR 411, Canada (Minister of Citizenship and Immigration v. Tobiass, (SCC), [1997] 3 SCR 391, andBlencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 , [2000] 2 SCR 307; and R. v. McCrea, 2004 BCCA229, citing R. v. Collins, (SCC), [1987] 1 SCR 265.

[12] I have also considered the following additional cases: (

a) R. v. Babos, 2014 SCC 16, citing the following cases: R. v. O'Connor, supra, and R. v. Bellusci, 2012 SCC 44; (

b) R. v. Golden, 2001 SCC 83, citing the following cases: R. v. Flintoff, (ON CA), [1998] 16 CR (5th) 248, R. v.Toulouse [1994] O.J. No. 2746 (QL) Provincial Division, R. v. Coulter, 2000 O.J. No. 3452 (QL) ONCJ, Nurse v. Canada (FC), 1997, 132 FTR 131, and Blouin v. Canada, [1991] 51 FTR 194; (

c) R. v. Carosella, (SCC), [1997] 1 S.C.R. 8; (

d) R. v. Nasogaluak, 2010 SCC 6; (

e) R. v. Hansen, 2012 BCCA 142, citing Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44; (

f) R. v. Lau, 2003 BCPC 294; (

g) R. v. Douglas, 2003 BCPC 292; (

h) R. v. Drury, 2004 BCPC 188; (

i) R. v. Lee, 2013 ONSC 1000; (

j) R. v. Fine, 2015 BCPC 3; (

k) R. v. Dunwell, 2016 ONCJ 133; and (

l) R. v. Judson, 2017 ONCJ 439. [13] At this remedy stage of the voir dire, the Crown called the drug

section supervisor for the Langley detachment (Sgt. Ly) whotestified generally about the previous and current strip search policies and practices. Sgt. Ly also presented a digital recording depictinghow strip searches now occur. [14] The parties agree that Ms.

Hall was detained for approximately 2.5 hours from the time of her arrest until she was released on aPromise to Appear. [15] I have considered all of the evidence, testimony, digital recordings, documents and submissions made during the initial voir direseeking the exclusion of evidence, which has been transformed into this second voir dire on the defence application for a stay ofproceedings. GENERAL BACKGROUND FACTS [16] After Ms. Hall's arrest, the following occurred: (

a) At some point after Ms. Hall's arrival at the police department, Cpl. Leslie was called in to conduct what she called a "basic cellsearch" by an officer of the same gender as the detainee. (

b) Cpl. Leslie testified that the arresting officer, Cst. Torenvliet, informed Cpl. Leslie about a statement made by Ms. Hall in whichMs. Hall indicated that she may have drugs in her bra. (

c) I was unable to rely on this evidence because Cst. Torenvliet had no recollection of any comments by Ms. Hall during her arrest,transport to cells, or arrival in cells, other than comments written in his notes (which did not contain any reference to the statementalleged). I note that Cpl. Leslie's note about this alleged statement was also written in the margins of her notebook after she had madenotes on that page. (

d) Accordingly, I found that the police lacked sufficient grounds for the strip search. [17] The strip search occurred as follows: (

a) Cpl. Leslie took Ms. Hall into a holding cell. The officer ensured that the door window was covered. (

b) Cpl. Leslie was aware that the holding cell was monitored visually by a digital camera. The four-minute long digital recording ofthe entire search was played in court. (

c) During the search, Cpl. Leslie had Ms. Hall face the corner of the cell, away from the digital camera. (

d) Prior to this search, Cpl. Leslie did not inform Ms. Hall that she was going to be strip searched or that she would be touching Ms.Hall's body. (

e) Cpl. Leslie checked Ms. Hall's waistband first. (

f) She then directed Ms. Hall to remove her bra. Ms. Hall pushed her T-shirt up around her neck, removed the bra and gave it toCpl. Leslie. (

g) During its removal, the side of Ms. Hall's naked breast can be clearly seen on the digital footage. (

h) Cpl. Leslie examined the bra briefly and located nothing.

(

i) Cpl. Leslie then had Ms. Hall hold up the front of her shirt. Cpl. Leslie swiped her gloved hand under each of Ms. Hall's naked breasts. She located an unwrapped rock of crack cocaine under one breast. She then examined the bra again, finding nothing. (

j) Cpl. Leslie then patted down Ms. Hall's lower body over her clothing. (

k) Ms. Hall was then permitted to adjust her shirt properly over her upper body. (

l) Throughout the strip shirt it is clear that Ms. Hall is quite upset and crying. [ 18 ] After the search, Cpl. Leslie testified that either she or Cpl. Torenvliet sought authorization from a supervisor to conduct what she then called a “strip search” for the lower body of Ms. Hall. Her supervising officer denied the request on the basis of insufficient grounds for a strip search. [ 19 ] Accordingly, I found that the manner of the strip search was unlawful: (

a) The police did not seek the authorization of a supervising officer before the strip search; and (

b) The police did not protect Ms. Hall's privacy because the holding cell was under video surveillance and recording which eliminated any notion of privacy. In other words, the police did not use the least intrusive measures to ensure her privacy.

LEGAL FRAMEWORK JUDICIAL STAY OF PROCEEDINGS GENERALLY General [ 20 ] In the case of Babos , the Supreme Court of Canada revisited and clarified when a judicial stay of proceedings may be imposed due to abuse of process or, in other words, state conduct. [ 21 ] I can impose a judicial stay of proceedings only on those rare occasions when it is the clearest of cases: Babos at para. 31 , citing O'Connor at para. 68 . This is a very high threshold. Tests [ 22 ] I turn now to the various tests. Type of Prejudice [ 23 ] The type of prejudice or misconduct underlying a stay of proceedings has two main components: (

a) Main category: The state conduct compromises the fairness of an accused's trial, which reflects most cases: Babos at para. 31 ; and (

b) Residual category: The state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process: Babos at para. 31 .

Seriousness of Conduct [ 24 ] I turn now to the criteria for examining the seriousness of the conduct: Has the conduct caused actual prejudice of such magnitude that the public's sense of decency and fairness is impacted? ( Regan at para. 52 , citing Blencoe at para. 133 ) Criteria for a Stay [ 25 ] I turn now to the criteria for a stay. [ 26 ] The test that I must use in determining whether to impose a stay of proceedings is the same for both the main category and residual category of cases, as follows: (a) "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' ": Babos at para. 32 , citing Regan at para. 54 . (

b) There must be no alternative remedy available and capable of addressing or mitigating the consequences of the state conduct: Babos at para. 32 ; Regan at para. 54 , citing O'Connor at para. 75 ; Carosella at para. 56 . (

c) If I am still uncertain, after considering the first and second criteria, I must balance the interests in favour of granting a stay (such as denouncing misconduct and preserving the integrity of the justice system) against "the interest that society has in having a final decision on the merits": Babos at para. 32 , citing Regan at para. 57 . [ 27 ] There is some ambiguity about whether I am required to engage the balancing of interest process regardless if the residual category is invoked.

The Supreme Court of Canada in Babos stated that its decision in Bellusci , "attests to the need for balancing when the conduct in question falls solely within the residual category": Babos at para. 42 . [ 28 ] Based on comments by the majority in the Babos decision, I believe I am required to apply the balancing of interest process when the accused relies upon the residual category: Babos at paras. 42, 45 through 47.

STRIP SEARCHES General [ 29 ] A strip search is 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's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments...": R. v. Golden at para. 47 . ANALYSIS SERIOUSNESS OF THE STATE CONDUCT [ 30 ] I turn now to my analysis.

I begin by examining the seriousness of the state conduct. [ 31 ] …"[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings"… Regan at para. 55 , citing Tobiass at para. 91 . [ 32 ] A stay on this basis can only be entered in exceptional or relatively very rare cases where the misconduct is so egregious that simply continuing the proceedings would be offensive: Regan at para. 55 , citing Tobiass at para. 91 . [ 33 ] A stay of proceedings should not be imposed in order to discipline the police.

It may be a secondary outcome but should not be the purpose of the stay: McCrea at para. 20 , citing Collins at page 281. Seriousness and Egregiousness of State Conduct [ 34 ] I must ask myself: Where does the state conduct in this case fall on the spectrum of seriousness? How egregious is the state conduct? [ 35 ] Ms. Hall did not testify in this voir dire regarding the impact of the strip search. I note that Ms.

Hall, through counsel, did not object to the playing of the video recording of the strip search in court and indicated that it was "not compromising." On the other hand, I note that I, and everyone in the courtroom, was able to view Ms. Hall's distress and the side of her naked breast on the digital recording. While I cannot be certain whether Ms. Hall's distress was caused simply by her arrest and/or the indignity of the unlawful strip search, the jurisprudence is clear about the inherent harm, degradation, and prejudice of unlawful strip searches.

Notably, the Supreme Court of Canada in Golden emphasized that any "after-the-fact" remedies for unjustified strip searches cannot erase the person's experience of being strip searched: para. 89. [ 36 ] As stated in my earlier decision on Voir Dire #1, strip searches involve a serious infringement of privacy and personal dignity: Golden at para. 99 . The Supreme Court of Canada observed the following: (

a) Strip searches are one of the most intrusive manners of searching: para. 89, citing Flintoff at page 257 (Quicklaw version: para. 24). (

b) Strip searches are one of the most extreme exercises of police power: para. 89, citing Flintoff . (

c) Strip searches unquestionably represent a significant and very direct interference with personal privacy: paras. 89 and 99. (

d) Strip searches are often a humiliating, embarrassing, degrading and traumatic experience for the persons searched: para. 89. (

e) There is a particularly acute need to prevent unjustified strip searches before they occur: paras. 23, 83 and 89. (

f) While the negative effects of a strip search can be minimized by the way in which the search is conducted, even the most sensitively conducted strip search is highly intrusive: para. 83; and (

g) Due to the inherently humiliating and degrading impact of strip searches, such searches cannot be carried on simply as a matter of routine police department policy: para. 90. [ 37 ] The inherent prejudice of the strip search here is aggravated by the digital recording of the strip search. It is unfathomable to me why Cpl. Leslie, who was sufficiently thoughtful to cover the holding cell window, would not have communicated with the monitoring room to ensure that they had stopped the recording or cleared the monitoring area for that screen. I note that Cpl.

Leslie testified, "I guess I was aware of the camera in the cell." It does not appear that she told Ms. Hall about the camera. [ 38 ] It is acknowledged that an arrestee in a police cell booking area has a diminished expectation of privacy. However, I was disturbed by Cpl. Leslie's somewhat casual dismissal of Ms. Hall's expectation of privacy during the search on the basis of arrestees being able to see signs in the booking area advising that they are under constant video surveillance. Whether or not there are signs regarding video surveillance in the cell booking area is irrelevant to this strip search when Ms.

Hall was obviously under the direction and authority of the police officer. Clearly, video surveillance of a strip search that permits the viewer to see naked parts of the female breast area would be contrary to the clear law pronounced in the Golden decision. [ 39 ] I was not provided with evidence relating to where the digital recording was stored and/or monitored, who had access to the monitoring room, whether anyone was monitoring the strip search as it occurred, or who had seen it since it was recorded.

I note that there did not seem to be any controls or limits on access to the digital recording after the fact. Cpl. Leslie testified that she simply asked for a copy of the recording and was provided with one. She was informed that the recordings were kept for two years. It does not require speculation to infer that all holding cells in the police detachment were video capable and monitored when occupied. Cpl. Leslie described it as a "normal cell recording." Cpl. Leslie appeared to be indifferent to the need to use the least intrusive means to ensure Ms. Hall's privacy.

[ 40 ] It also does not require speculation to infer that it was very possible that a civilian member of the RCMP was monitoring and able to see the videos for all occupied cells when a detainee was taken to a holding cell. [ 41 ] I also note that the alleged routine approach to this type of search of female detainees by Cpl. Leslie also further aggravates the state conduct in this case. I will discuss the evidence on the alleged routine character of this search later in this decision. [ 42 ] I am unable to say that Ms. Hall's search was conducted in the least intrusive manner to ensure her privacy.

Overall, for the reasons above, the state conduct rises to an egregious level at the high end of the spectrum of prejudice, permitting me to move on to the test for a stay of proceedings. IMPACT ON TRIAL PROCESS [ 43 ] I turn now to the impact upon the trial process. [ 44 ] I was unclear whether the defence was seeking a stay of proceedings based on the main category relating to trial fairness for Ms. Hall, or the residual category relating to the integrity of the justice system.

Many of the defence submissions rested on the alleged systemic nature of the state conduct. [ 45 ] When I consider trial fairness, I note that the primary evidence against Ms. Hall was located in the vehicle she was driving after her lawful arrest. The strip search occurred afterwards at the Langley detachment. Thus, there is no direct connection in time between the discovery of the evidence and the strip search: McCrea at para. 19 . [ 46 ] The harm caused by the strip search is not directly related to the evidence discovered in the car, which constitutes the primary evidence against Ms.

Hall should the matter proceed to a trial. Only one unwrapped rock of crack cocaine was discovered under one of Ms. Hall's breasts during the strip search. The discovery of that rock of crack cocaine would not have a material effect upon the outcome of this trial.

Overall, the state conduct does not have a material effect upon the conduct of the trial or its outcome: McCrea at para. 20 . [ 47 ] The Supreme Court of Canada stated, "...when the main category is invoked...the concern is whether there is ongoing unfairness to the accused." Babos at para. 34 , emphasis in original. [ 48 ] I am unable to say, based on my observations above, that there is an ongoing unfairness to Ms. Hall. IMPACT ON INTEGRITY OF THE JUSTICE SYSTEM [ 49 ] I turn now to the impact on the integrity of the justice system. [ 50 ] It appears to me that the residual category applies to this case.

When the residual category is invoked, the following questions arise: (

a) Whether the state was engaged in conduct that is offensive to societal notions of fair play and decency; and (

b) Whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. [ 51 ] The Supreme Court of Canada explained that there are limits on the type of conduct society will tolerate in criminal prosecutions: “…At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency….” ( Babos at para. 35 ). Routine Strip Searches [ 52 ] A central issue here is whether Ms. Hall's experience was routine and systemic.

If so, then the state conduct might offend societal notions of fair play and decency. Proceeding with a trial might also leave the impression that the justice system condones the state conduct. [ 53 ] Cpl. Leslie's evidence about the past and current routine nature of the "cell search" is contradicted by Sgt. Ly. If I accept her evidence, then I must conclude that the strip search was and is routinely conducted on all female detainees wearing a bra. Her evidence did not reveal whether female detainees were routinely subject to "cell searches" in rooms with active video monitoring and recordings.

I have not been told whether Ms. Hall could have been searched in any other available area that was not subject to video surveillance. [ 54 ] If I accept Sgt. Ly's evidence, then I must conclude that the practice described by Cpl. Leslie, and possible video recording of an unclothed person during a strip search, no longer occurs and does not require a stay. [ 55 ] A review of Cpl. Leslie's evidence establishes the following: (

a) She was a senior officer with 16 years extensive experience policing in a northern town; on large-scale projects; with the Surrey Crime Reduction Unit; with the Langley Drug Section; and now back with the Surrey RCMP. These are large catchment areas where I would expect her to be called out to conduct searches of female detainees regularly. (

b) She was specifically asked to attend the Langley detachment cells to conduct a search of the female arrested on 19 January 2017, Ms. Hall. She was not instructed to conduct a strip search. She understood that she would be conducting a "pat down", "standard search in cells of a female". (

c) It was "very typical" for her to be called to do searches because throughout her 16-year career there were "typically" fewer female than male officers and only female officers can search female detainees. (

d) She characterized this search as "a basic cell search", which is the same kind of search she would do on any female coming into

cells. The basic or regular cell search requires all females to remove their bras whether or not the police believed there was evidence present. It was normal procedure for booking females into cells because it was known that bras could be used to conceal evidence, weapons, or be used for self-harm. Each time she conducts the search, she has to remove the bra. (

e) Cpl. Leslie repeatedly and continuously referred to the search conducted on that day as a "common", "standard", "regular", and "routine" search. (

f) She testified that she would routinely remove the bra and would swipe under the female's breasts if she believed that a weapon or evidence was present. (

g) It was her understanding of their policy that she did not need a warrant or reasonable grounds to remove a bra or to ensure that, at any time, evidence relating to the reasons for arrest or weapons was not present. Therefore, she did not believe she required reasonable grounds to conduct a cell search. (

h) Cpl. Leslie understood that it was acceptable policy to remove the bra for cell searches because it potentially poses a risk to prisoner safety. It is a procedure that is always undertaken in every cellblock she had ever worked in. These types of searches did not require a supervisor's authorization, in her view. (

i) Cpl. Leslie distinguished the "cell search" she performed on Ms. Hall from a strip search. She characterized a strip search as far more invasive, involving the complete removal of clothing and a visual inspection of the genital, groin and rear areas of the body, the movement of body parts, and no police touching of the detainee's body. She acknowledged that she required a supervisor's authorization prior to a strip search. She later acknowledged that the visual inspection of female breasts would be the same as the visual inspection of the genital areas. (

j) For a cell search, another officer did not need to be present. For a strip search she would have another female officer present, if one was available. (

k) Although Cpl. Leslie later sought authorization to perform a strip search on Ms. Hall, the supervising officer declined and indicated that there were insufficient grounds. (

l) Cpl. Leslie testified that she was aware of RCMP policies concerning "personal searches, strips searches, cell searches and cavity searches." There were policies about all of them. She was also aware of the decision in Golden that "outlines" how strip searches should be conducted but, again, she distinguished the “cell search” from “strip searches”. [ 56 ] Like Cpl. Leslie, Sgt. Ly is a senior officer with 15 years' experience at the time of trial. He had been the supervisor of the Langley Drug

Section since 2015. He supervises 10 police officers and municipal staff. His evidence was as follows: (

a) In the past, the police did remove bras from female detainees for the safety of detainees and people in cells. It was more like a general practice. (

b) However, there had been "recent policy amendment over the years", according to Sgt. Ly. Today, it is not standard protocol for the police to remove the undergarment from the detainee merely based on the fact that it may contain a wire. (

c) Sgt. Ly indicated that the police must now have reasonable grounds to believe that the undergarment will pose a risk or be capable of posing a risk to the detainee as well as to the police. (

d) When asked whether it was still the general practice to look for wire in bras in January 2017, Sgt. Ly responded that policy was in place, especially in Langley, to adhere to the law in the Golden decision. Therefore, he believed that there was no such standard practice to look for wire in bras. (

e) Sgt. Ly testified that strip searches were subject to national RCMP policy, as well as unit supplements. There is a written RCMP policy about strip searches. However, that written policy was not submitted in evidence before me. Strip searches were not standard protocol, according to Sgt. Ly. The practice of strip searches in Langley was informed by the national policy. (

f) He stated that the police had to have reasonable grounds to believe that the detainee was concealing evidence relating to the arrest or anything that posed a risk to the detainee or police while in cells. (

g) The police had to seek authorization to conduct a strip search from a supervising officer. (

h) Sgt. Ly provided a digital recording to demonstrate how strip searches "will" be done in Langley. The detainee stands behind an adjustable privacy screen, on wheels, similar to a medical screen. The searching officer with the same gender as the detainee stands in view of the video camera but also in view of the detainee. The detainee's body is shielded from the video camera by the screen. Once an item of concern is removed from the detainee, the officer holds the item up to the video camera. Once the detainee is fully clothed the screen can be removed.

Only one officer would be involved if the detainee was cooperative. If the detainee was not cooperative, the number of officers involved would be decided on a case-by-case basis. There should be no physical contact between the officer and the detainee unless there are exigent circumstances. (

i) Sgt. Ly stated that he has conducted several in-house training presentations. However, he acknowledged the presentations were more geared to drug offences. He indicated that he provides sessions for new officers and the in-house learning addresses strip searches. (

j) As part of the protocol or training, the police are required to familiarize themselves with the Golden decision. [ 57 ] I find that Cpl. Leslie's evidence was very specific, as opposed to the very general nature of Sgt. Ly's evidence. Sgt. Ly did not provide any indication about when the general practice of removing bras from female detainees was changed. His best testimony on the

point of "recent amendment over the years" is not helpful. He believed that there was no such practice to look for wire in bras in January 2017 because Langley detachment policy required officers to adhere to the Golden decision. This evidence is also too general to be helpful. The Golden decision was released 16 years prior to the events of January 2017. If the general practice of removing bras from female detainees was subject to "recent amendment over the years" how could the amendment be recent? It should be over a decade old by January 2017. [ 58 ] On the other hand, Cpl.

Leslie also testified that she was aware of the Golden decision, yet she consistently testified that the removal of bras were common, regular, routine and standard for all female detainees over the course of her entire career. Her 16-year career spanned the entire lifetime of the Golden decision.

So she conducted this "typical" cell search in January 2017; wrote a Report to Crown Counsel dated 22 August 2018, which is over a year-and-a-half later, explaining that it was the same kind of routine search performed on female prisoners booked into cells; and testified to the same information in court on 4 September 2018. [ 59 ] Sgt. Ly testified four months later in December 2018. [ 60 ] At trial, Cpl. Leslie still did not seem to understand that what occurred was a strip search. Her concern for officer and prisoner safety remained consistent. [ 61 ] I am unable to derive comfort from Sgt.

Ly's evidence about the type and timing of Langley training sessions. I am unclear when those sessions were given and to what extent the regular "cell searches" versus strip searches were distinguished and discussed. [ 62 ] Cpl. Leslie worked at the Langley detachment during 2016 and 2017. Surely, if such training had been given, she would not hold her current views, nor remove bras during routine cell searches. [ 63 ] I cannot conclude that the problem has been addressed adequately or in a manner that ensures compliance with the established law in the Golden decision. [ 64 ] Sgt.

Ly's evidence about the privacy screen shows a great improvement to what occurred with Ms. Hall. These are welcome changes. However, it relates to how a strip search should be conducted but does not deal with when it should be conducted. [ 65 ] Importantly, Sgt. Ly's evidence demonstrated a lack of understanding that the removal of a bra constituted a strip search requiring not only reasonable and probable grounds but also the prior authorization of a supervising officer. In this regard, Sgt. Ly's understanding about bra removals is not too far removed from Cpl. Leslie's evidence.

She testified that neither warrants, reasonable grounds, nor a supervisor's authorization were required before bras were removed from female detainees.

Both officers appeared to misunderstand the Golden decision. [ 66 ] The law is clear that strip searches must not be carried out as a matter of routine police department policy or practice applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or drug trafficking: Golden at para. 95 . [ 67 ] A "routine" strip search carried out in a reasonable manner, in good faith and without violence still violates s. 8 when there is no compelling reason for performing a strip search in the circumstances of the arrest: Golden at para. 95 . [ 68 ] The mere possibility that a person may be concealing evidence or weapons is not sufficient to justify a strip search: Golden at para. 94 . [ 69 ] I acknowledge officer and detainee safety is an important consideration.

I also acknowledge that bras may be used to conceal evidence or weapons. However, the decision to remove a female detainee's bra must be decided on a case-by-case basis. The bra removal cannot be routine. [ 70 ] Overall, I conclude that the removal of Ms. Hall's bra was part of a systemic and routine practice contrary to the law. Short Term Detention [ 71 ] I turn now to the issue of the short term of Ms. Hall's detention. [ 72 ] Ms. Hall was only detained for approximately 2.5 hours before she was released on a Promise to Appear by the police.

There is no evidence that she would be intermingling with other detainees. The Langley police department is not connected to a pre-trial centre where there is a risk that she would be co-mingling with resident inmates. [ 73 ] There is a difference between a prison context and a short-term detention context: Golden supra at paras. 96 to 97 . [ 74 ] The police and public are entitled to be concerned about an arrestee concealing weapons or drugs if that person will be entering the prison population.

However, it is different if a person is only being held for a short time and not co-mingling with the general prison population.

The type of searching required before a person may enter the prison population cannot be used to justify extensive strip searches or routine strip searches of those who are detained briefly by the police, such as a person held overnight: Golden at para. 96 , citing Toulouse and citing Coulter at paras. 26 to 27. [ 75 ] The Supreme Court of Canada in Golden specifically stated: …While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees. (para. 97) Over-Representation of Certain Groups

[ 76 ] I turn now to the over-representation of certain groups. [ 77 ] The Supreme Court of Canada in Golden also acknowledged that certain groups (ie. Afro-Canadians and Indigenous people) were over-represented in the Criminal Justice System and, thus, likely represent a disproportionate number of those arrested and searched, including strip searched, by the police.

Likewise, I am alive to the fact that another group, female arrestees, may represent a disproportionate number of those who are strip searched on the basis that they are wearing bras that, from a police perspective, may conceals weapons, evidence, or contraband and pose a security risk. Conclusion – Impact on Integrity of Justice System [ 78 ] Overall, I find that the state conduct in this case has prejudiced the integrity of the justice system. This prejudice is due to the systemic nature of state conduct in violating the clear requirements on strip searches.

It does so in a manner that may disproportionately impact female arrestees. I agree with the statement of Feurst J, in Lee at paragraph 46 : The trial judge also did not consider the appropriateness of an unwritten police policy that leads to potentially differential treatment of female and male arrestees, with female arrestees wearing underwire bras being automatically and without exception subjected to a form of strip search. [ 79 ] A stay of proceedings on these bases is necessary to prevent the perpetuation of the state conduct.

AVAILABILITY OF ANY OTHER LESS DRASTIC REMEDY [ 80 ] I must now turn to whether there is any other less drastic remedy reasonably available other than a stay of proceedings. [ 81 ] Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial: Babos at para. 39 . When the residual category is invoked, remedies must be directed towards the harm caused to the integrity of the justice system: Babos at para. 39 .

If there is no evidence to exclude, there may still be other less dramatic remedies: McCrea at para. 24 [ 82 ] I have identified the following possible alternative remedies: (

a) The B.C. Court of Appeal in McCrea referred to the public police complaint process for RCMP officers (para. 24). (

b) Many cases have referred to a possible civil court action. (

c) Many other cases note that a sentence may be reduced due to state conduct by the police whether it constitutes a Charter violation or not: McCrea at para. 24 ; Nasogaluak at paras. 50, 53 and 55 . [ 83 ] I note that the remedy should relate to the seriousness of the conduct: McCrea at para. 23 . [ 84 ] I consider the public police complaint process to be inadequate to address what I have found to be a systemic problem.

I am mindful of the Supreme Court of Canada's observation about the difficulties in pursuing a civil action to redress the prejudice a strip search: “...recent cases illustrate that damage awards in tort for unlawful strip searches remain low and the costs of bringing a civil action would far exceed the nominal damages awarded”: Golden at para. 57 citing Nurse and Blouin . [ 85 ] I consider the ability to reduce Ms. Hall's sentence due to the state conduct to be a compelling option. However, such a remedy would address the prejudice visited solely on Ms.

Hall but not address the systemic nature of the harm to the integrity of the justice system. [ 86 ] I am unable to conclude that there is any other reasonably available and less drastic measure in these circumstances that will redress or mitigate the harm to the integrity of the justice system.

BALANCING OF INTEREST [ 87 ] I turn now to my last consideration, the balancing of interests served by imposing a stay against society's interest in a trial on the merits. [ 88 ] The balancing of interests takes on added significance when the residual category is invoked because I must decide whether the integrity of the system is better protected by staying the proceedings or having a trial despite the impugned conduct: Babos at paras. 40 and 41 . [ 89 ] The applicant bears an onerous burden: Babos at para. 44 . [ 90 ] Given the systemic and routine decision to strip search and the manner of the strip search, including the video recording, were all unreasonable and linked, I have considered the state conduct cumulatively and in their full context: Babos at para. 73 .

Nature and Seriousness of Impugned Conduct [ 91 ] I turn first to the nature and seriousness of the impugned conduct. [ 92 ] The factual considerations used in the balancing process for the Bellusci decision at para. 29 , which was cited in Babos at para. 42 , are similar to those in Ms. Hall's case. I, too, recognize the difficult position of the police in ensuring the safety and protection of officers, civilian police staff, the accused and other detainees in the police cell block area. I also recognize that the justice system considers it important to ensure their protection. [ 93 ] While the prejudice to Ms.

Hall was somewhat fleeting, the judicially recognized inherent prejudice of the videotaped strip

search raises the level of seriousness by state actors. I adopt the reasoning of Fuerst J in Lee at para. 45 : “The lower court failed to consider the reasonableness of a police policy that characterizes every underwire bra as a potential weapon”. [ 94 ] As previously explained, the state conduct rises to an egregious level at the high end of the spectrum of prejudice.

Systemic or Isolated Conduct [ 95 ] I turn now to whether the conduct was isolated or reflects a systemic and ongoing problem. [ 96 ] If the conduct is ongoing and systemic, it may be more difficult for the court to disassociate itself from the state conduct with anything less than a stay: Babos at para. 41 . [ 97 ] I have found that the conduct was systemic. I have also expressed concern about the indifference and lack of knowledge displayed by the police regarding strip searches. The failure to comply with the established well-known

definitions and law on strip searches up to present day severely impacts the integrity of the justice system. Circumstances of Accused [ 98 ] I turn now to the circumstances of the accused. [ 99 ] I know little about the circumstances of Ms. Hall. She suffered no physical injuries due to these events. She cannot be considered a youthful nor elderly accused. Charges Against Accused [ 100 ] I turn now to the charges against the accused. [ 101 ] These drug-related charges are very serious.

Drug dealing rightly concerns the community given the dangerous nature of the activity due to the related violence and lethal substances sold to sometimes unsuspecting drug addicts. Here, the drugs located in Ms. Hall's vehicle include fentanyl blended with heroin. The lethal effects of fentanyl are well-known and should have been well-known to Ms. Hall by January of 2017. [ 102 ] Ms. Hall appears to occupy the lowest rung in the hierarchy of this drug operation. Her alleged role is necessary for the delivery of illicit drugs.

However, I note that she possessed a single, unwrapped rock of crack cocaine on her person, which implies that she may be a drug user or was. The courts have acknowledged that drug addiction is an illness. Hinkson JA, as he then was, emphasized this dilemma in R. v. Hanson at paragraph 26. Drug addiction is an illness characterized by a loss of control over the need to consume the substance to which the drug user is addicted: Hansen, citing Canada (Attorney General) v. PHS Community Services Society , 2011 SCC 44 .

Society’s Interests [ 103 ] Lastly, I turn to society's interest in a trial on the merits. [ 104 ] The presence of fentanyl blended with the drugs discovered in Ms. Hall's vehicle means that society's interest in a trial on the merits is high. The more egregious the state conduct, the greater the need for the court to disassociate itself from that conduct.

If the state conduct "shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail": Babos at para. 41 Case Law [ 105 ] I have reviewed a number of cases involving applications for judicial stays of proceedings due to unlawful strip searches and one case relating to an application to exclude evidence.

Some of the cases are distinguishable on some of their facts; however, they reflect the ongoing nature of routine strip searches or videotaped strip searches several years after the Golden decision. [ 106 ] I make the following observations about those cases: (

a) Two cases involved videotaped strip searches of men and women: Hjerpe and Fine . (

b) Many cases involved routine and systemic unlawful strip searches of female detainees, usually involving the removal of bras: Lau, Lee, Dunwell, Judson . (

c) In all but one case, the strip searches of men and women were found to be unlawful: Hjerpe, Hendrickson, Lau, Drury, Lee, Dunwell, and Judson . (

d) Three BC Provincial Court cases dealt with the "normal practice" of strip searching any detainees because, at that time, the jail was operated by corrections staff and associated to the Vancouver Pretrial Centre: Lau, Douglas, and Drury . A stay of proceedings was entered in Lau and Drury but not in Douglas . However, the court in Douglas at paragraph 81 noted that: “Until it is determined that these persons will be detained in custody and therefore must be lodged in cells, a proper balancing of the right to privacy with the institution's interests in security, a proper level of safety in the jail preclude a blanket policy of strip searching”. (

e) Confusion by the searching officers about the definition, law and safeguards for strip searches "does not inspire confidence": Hendrickson at para. 17 . (

f) Many cases found that state conduct would be unanswered if the trial was permitted to continue: Hjerpe, Hendrickson, Lau, Drury, Dunwell, and Judson .

[ 107 ] The type of search conducted on Ms. Hall continues to be a problem 18 years after the release of the Golden decision. This is very disheartening. [ 108 ] After balancing the relevant interests, I find that the need to disassociate the justice system from the state conduct in this case and the need to preserve the integrity of the justice system outweighs society's interest in having a trial on the merits. [ 109 ] I find that this is one of the rare, clearest of cases, requiring a stay of proceedings.

A stay of proceedings is ordered for all the counts on the Information. (RULING RE SECTION 24(2) CHARTER APPLICATION CONCLUDED) CORRIGENDUM - Released July 12, 2019 In the Oral Ruling Re Section 24(1) Charter Application dated March 11, 2019, the following changes have been made: [1] The front cover has “Section 24(2)”. The correct number is “Section 24(1)”. [2] Paragraphs 102 has the word “addition”. The correct word is “addiction”. _________________________________________ The Honourable Judge D. Gaffar Provincial Court of British Columbia