R. v. A.(Z.), 2012 ONCJ 541

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto DATE: 2012·August·29 Citation: R. v. A.(Z.) , 2012 ONCJ 541 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — Z. A. , a young person Before Justice M. L. Cohen Reasons for Judgment released on August 29, 2012 Ms. Yeshe Laine ......................................................................................................... for the Crown Ms. Shawna M. Fattal .......................................................................... counsel for the accused Z. A. COHEN, M. L. J.:

[ 1 ] This is a ruling on a Charter application brought by Z.A., an accused youth. Z.A. alleges that his rights under sections 7, 8, 10(

b) and 12 of the Charter have been violated, and seeks a stay of the prosecution as a remedy. The Crown opposes the application. In these reasons I concentrate on the alleged violations of

section 8 and 10(

b) of the Charter. In particular, I have focused on the implementation of the right to counsel given in this case, and on the constitutionality of the strip search of Z.A. which occurred while he was in custody at the police station. In light of my disposition on these issues, I find it unnecessary to rule on the alleged breaches of sections 7 and 12.

The Charges [ 2 ] The accused is charged that on April 17, 2010, he: did without reasonable excuse refuse to comply with a demand made to him by Kuljit Singh Gill, a peace officer under section 254(2) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of Kuljit Singh Gill was necessary to enable a proper analysis of his breath to be made by means of an approved screening device . [ 3 ] He is also charged that, on the same date, he did assault Kuljit Singh Gill, a peace officer a police officer for the city of Toronto engaged in the execution of his duty.

Facts [ 4 ] There are three acts to the drama that unfolded between the accused and the police in the early hours of April 17, 2010. The first involves a police demand that Z.A. provide a breath sample, and Z.A.’s subsequent arrest for refusing. The second concerns a struggle in the rear seat of the police cruiser between Z.A. and the arresting officers which resulted in the assault police charge. The third act involves events at the police division which culminated in a strip search of the accused.

The Approved Screening Device Demand [ 5 ] At 2:21 a.m. on April 17, 2010, two police officers, PC Gill and PC Mahmodian, were sitting in their scout car in a mall parking lot when they were approached by an unidentified male. The male advised the police that he had observed a black Honda run over a stop sign in the parking lot, and then drive out of the lot. He said the car had been damaged. The officers immediately drove in the direction he indicated, and eventually observed a dark Honda driving into a parking spot behind a residential building.

The officers pulled in behind the car and observed the accused and two others, one of whom was carrying a case of beer, exit from the vehicle. The officers approached the group and commenced an investigation. Neither officer recorded the time the investigation commenced, however PC Mahmodian estimated that it began between 2:26 and 2:31 a.m. [ 6 ] PC Gill investigated Z.A., who had emerged from the driver’s seat. PC Mahmodian inspected the vehicle, which was damaged, and spoke to the passengers. As PC Gill was talking to Z.A., he smelled alcohol on his breath.

He asked Z.A. how much he had to drink that night, and the accused replied that he “had a couple of beers before.” When the officer asked how many, Z.A. replied that he wasn’t sure. PC Gill asked for identification and the accused produced a valid Ontario Driver’s licence.

The date of birth indicated that Z.A. was 17 years old at the time. [ 7 ] PC Gill observed no indicia of impairment, however based on Z.A.’s admission of drinking, the fact that he had been driving moments before, and the smell of alcohol on his breath, PC Gill formed the reasonable suspicion that Z.A. had been driving with alcohol in his system. The officer then made a formal demand that Z.A. provide a suitable breath sample into an approved screening device for purposes of analysis. He did not record the time of the demand. PC Gill asked Z.A. if he understood, and Z.A. responded, “I refuse.

I’m not doing that shit.” The officer made a second demand and the accused replied “I’m not doing shit and you can’t make me.” The time of the second demand was also not recorded. [ 8 ] PC Gill did not have an approved Screening Device in his possession at the time he made the first two demands. One of the officers radioed to request delivery of the device. Neither officer made a note of, or recalled, who made the call and when. Neither officer had any recollection or note of the time the device arrived. [ 9 ] The Approved Screening Device was delivered by PC Virdi.

PC Virdi stated that at approximately 2:20 a.m. he was detailed to make the delivery and that at 2:22 he attended at the police station to pick up the device. PC Virdi stated he left the division at 2:23, and that the drive takes “a couple of minutes, ten maybe.” Although P.C. Virdi made notes of the times I have indicated, I cannot be certain these times are correct.

Since, at 2: 20 a.m., PC Gill had neither met the accused, nor been advised of the collision in the parking lot, either PC Virdi, or PC’s Gill and Mahmodian, are wrong about the times they did record in their notebooks. [ 10 ] After the arrival of the approved screening device, PC Virdi made a third demand. Z.A. replied, “Fuck you bitch.” PC Gill had no note of the time that elapsed between the second and third demand. PC Gill then advised the accused that the penalty for refusing a sample was the same as the penalty for failing the test, and that he would be arrested for failing to provide a breath sample.

At 2:42 a.m., PC Gill made a fourth and final demand, and the accused replied, “I refuse”. PC Gill then arrested the accused. [ 11 ] Z.A. filed an affidavit as his examination in chief on the Charter voir dire , and was cross-examined by the Crown. He acknowledged that he had consumed alcohol earlier that night. He denied, however, that the officer made a formal demand that he

provide a breath sample. Subsequently he testified that he inquired about the machine, and that at some point he was aware that he was under arrest for refusal to provide the sample. His evidence was confusing and contradictory. [ 12 ] Where there is a conflict between the evidence of Z.A., and the evidence of PC Gill, in relation to the demand and the refusal, I prefer the evidence of PC Gill. The process described by PC Gill struck me as routine, and in accordance with common police practice. Although PC Gill’s note-taking was inadequate, his evidence was consistent and logical.

I found the fact that PC Gill gave Z.A. four opportunities to respond to the demand, evidence of his calm demeanour in the face of Z.A.’s provocative responses. [ 13 ] Z.A., by contrast, acknowledged in his testimony that he was “upset at the whole situation.” In my view, this upset, as well as his youthful inexperience, could well have affected Z.A.’s ability to clearly recall or describe the events surrounding the demand and the arrest. Thus, while the inconsistencies in Z.A.’s testimony could arguably reflect on his credibility, I am inclined to characterize his evidence as unreliable.

On the evidence of PC Gill, Z.A. was not advised of his right to counsel prior to his arrest, and the Approved Screening Device was never produced and shown to him. I find it quite possible that, despite his rude bravado, Z.A. did not entirely understand what was taking place. There is no evidence Z.A. had ever been asked to produce a breath sample before, and what is routine for an experienced police officer would not be routine for this seventeen year old.

The Struggle in the Backseat [ 14 ] Although I have found the accused’s testimony unreliable in what I have referred to as the first act of this drama, I come to a different conclusion with regard to Z.A.’s testimony about the struggle with the police in the back seat of the cruiser.

Here I find the accused’s version of events clear and credible, as well as consistent to some extent with what the officers described. [ 15 ] At 2:42 a.m., having arrested Z.A. for refusing to provide a breath sample, PC Gill advised him of his right to counsel by reading the following from the back of his police notebook: I am arresting you for failing to provide a suitable sample of breath. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer.

If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now . [ 16 ] As subsequent events bear out, PC Gill had little interest in actually affording Z.A. an opportunity to call a lawyer. PC Gill stated that he asked Z.A. whether he understood what he had just read to him, and Z.A. replied “yup”. The officer then asked him, “Do you wish to call a lawyer now?” to which Z.A. replied, “Yeah.” PC Gill did not acknowledge this response.

Indeed, despite this response, PC Gill made no effort to explain to the youth how or when he would be able to speak to a lawyer, nor that he could have the opportunity to consult with his parents or another adult. PC Gill also did nothing to facilitate Z.A.’s exercise of his right to counsel, such as asking him if he had a cell phone, which he had, or a lawyer he wished to call, which he also had. Thus, he made no effort to assist the accused to exercise the right he had just informed Z.A. was his.

In short, there was a failure on the part of the police to give effect to the law’s insistence that special considerations should apply to this detainee as a result of his youth.

Furthermore, I suspect that if such efforts had been made, the outcome of this incident might have been different. [ 17 ] Regardless of Z.A.’s expressed desire to speak to a lawyer, apparently indifferent to the fact that he was dealing with a seventeen year old youth, and without further explanation of the meaning of the right to counsel, PC Gill proceeded to conduct a “quick pat down” search, cuffed the accused to the rear, and placed him in the back of the scout car. PC Gill stated that Z.A. was momentarily and minimally resistant to entering the back seat, and thereafter was compliant.

He performed a CPIC check and noted no outstanding charges or criminal record. Intending to release Z.A. to the custody of his parents, a fact he did not disclose to the youth, PC Gill then spent almost an hour preparing a Promise to Appear. PC Gill was unable to explain why the process took this long. In any event, nothing untoward occurred during this period. At some point PC Gill was joined in the front seat by PC Mahmodian who was writing up his own notes.

After PC Gill had completed the Promise to Appear, he returned to the rear seat of the car to explain to explain to Z.A. “what was going on.” At this point differences appear in the versions of the police and the young detainee in their respective narratives of key events. [ 18 ] PC Gill says that when he opened the rear door of the vehicle, the accused immediately kicked him in the thigh. He states that he stepped back, re-entered the rear of the cruiser, and found the accused in the backseat “playing with his Blackberry”. A struggle then ensued between PC Gill, joined by PC Mahmodian, and Z.A.

Both officers forcibly held the accused down so they could pry the phone from his hands. PC Mahmodian says it was at this time that the accused kicked PC Gill, striking him in the midsection. Both officers agree that their objective was to get hold of the cell phone, and that the struggle was very brief, lasting less than thirty seconds. Once the cell phone was in hand, PC Gill arrested Z.A. for assaulting a police officer. [ 19 ] Z.A. states that when the officers entered the rear seat of the cruiser, he was sitting up and had managed to get his cell phone into his hands, despite being cuffed to the rear.

He states that he was trying to get in contact with his lawyer, whose number he had in his cell phone, (a matter that might possibly, but inaccurately, point to Z.A.’s level of sophistication), and that he repeatedly informed the officers that he was trying to call his lawyer. He says that he asked the officers ‘Why won’t you let me call my lawyer?’ and then “the assault began.” Z.A. testified that he knew the officers wanted his Blackberry, but that he did not obey their commands because he wanted to call his lawyer. [ 20 ] Z.A. denies deliberately kicking the officer.

He states that PC Mahmodian approached from the rear passenger door and grabbed his shoulders forcing him down on seat, while PC Gill tried to apprehend the Blackberry from the other side of the car. He states that during the struggle, his neck was forcefully restrained downwards, and he felt several blows and pinches administered by both

officers to the back of his head, neck, and back. He states that he suffered pain and discomfort as a result. [ 21 ] Although there is a disparity in the accounts of the three witnesses, I find it most likely that the kicking of the officer occurred in the course of the struggle by the accused to hang on to his cell phone. I come to this conclusion because I find that the accused had actually managed to get the phone out of his pant pocket and into his hands, and was intent on only one thing - which I find as a fact- using his cell phone to call his lawyer.

He was preoccupied with this effort, and not with any random anger or belligerence directed at the police. As he testified, his objective was to exercise the rights the officer had given him. Here is what he said: The officer asked me - he read me my rights to counsel and then he asked me: “Do you want to speak to your lawyer? Do you want to speak to a lawyer now?” I was just trying to speak to a lawyer now. My rights - I was trying to exercise my rights.

If he asked me do you want to speak to a lawyer, I think I have the right to speak to a lawyer… [ 22 ] While I in no way justify Z.A.’s actions in resisting the police, I accept that Z.A. had interpreted the officer’s words literally, and concretely. PC Gill had never explained to the youth that speaking to a lawyer “now” did not mean “now.” [ 23 ] PC Gill decided the accused would not be released on a promise to appear because: we didn’t feel due to his being violent that he wasn’t suitable for release at the scene [ 24 ] At 3:31 p.m., the officers transported Z.A. to the police division, arriving at 3:41.

Z.A. was then paraded before the Staff Sergeant in the booking hall, placed in a police interview, and strip searched. At 4:45 a.m. PC Mahmodian contacted duty counsel, and at 5:00 a.m., roughly two and one half hours after he was detained, Z.A. was finally permitted to speak to a lawyer. The Strip Search [ 25 ] At 3:48 a.m., the accused was paraded in the booking hall before acting Staff Sergeant James, the officer in charge of the booking and release of prisoners. The parade was videotaped and played in court.

In the video, PC Mahmodian advises Sergeant James as follows : He’s been placed under arrest to provide a breath sample, also for assaulting a police officer. Advised of his rights to counsel and he does wish to speak to duty counsel… [ 26 ] Whatever being “under arrest to provide a breath sample” meant, it elicited no inquiry from the booking sergeant. In the booking hall, Z.A. complained that the police were hurting him. At times he was rude and argumentative. Sergeant James responded by bellowing at him. He accused Z.A. of being “drunk and intoxicated,” and said he was slurring his words.

On my viewing of the video, other than observing Z.A.’s challenging attitude, I did not see any obvious signs of impairment. In his testimony, Z.A. expressed shame and remorse about his behaviour during the parade in the booking hall. [ 27 ] After a few moments both the accused and the Staff Sergeant calmed down. Z.A. provided his address, telephone number and parent’s names. He stated that he was in pain and injured as a result of his mistreatment by the officers. The staff sergeant did a cursory inspection and disagreed.

In his testimony, PC Gill denied any excessive force had been used, but acknowledged that the accused had burns on his wrists caused by the handcuffs. By all accounts this type of burn is considered a normal event by the police. One of the officers searched the accused’s pockets. The accused was found to be in possession of $2,400.

There was no explanation for where this money came from, and no charges were laid in relation to it. [ 28 ] Sergeant James advised the accused that the police were obliged to notify his parents because he was under the age of 18, and that he was entitled to contact anyone over the age of 18 to assist him. He also told him that he could contact any lawyer he wished or duty counsel for free legal advice, and that he is allowed to speak to the lawyer in private. Z.A. was also told he would have reasonable use of a phone.

Although at one point Z.A. referred to “my lawyer,” at no time was he asked whether he wished to contact a particular lawyer, nor was he told when his contact with a lawyer would be facilitated. [ 29 ] The booking parade ended at 4:02 a.m., and Z.A. was placed in an interview room. Sergeant James directed the officers to remove the accused’s shoelaces and the “ligature” which the accused says he was wearing on his wrist for religious reasons. It is clear from the booking video Sergeant James said nothing about, and did not authorize, a further search of the accused.

Sergeant James testified that at 4:02 a.m., when Z.A. left the booking hall to go the interview room, he did not have sufficient information to determine whether the youth would be released. [ 30 ] Between 4:02 a.m. and 4:25 a.m., Z.A. was strip searched by the arresting officers. In his testimony he stated the following about the strip search: Duty counsel spoke to me after I was assaulted, after I was arrested, after I was stripped searched, after I was humiliated, degraded, laughed at and I didn’t even want to speak to duty counsel… *** I’m strip searched.

Like that’s – Do you know how ashamed I was -, like I never showed any of my private parts to a girl and I have to show it to an officer… *** No, the search, I will never forget that. I was completely naked in front of two officers who assaulted me… ***

I was shocked, I had no hope, like, that’s something I can’t even explain to you. How can I explain what I went through? How can I explain what I was feeling? [ 31 ] Z.A. was not offered any opportunity to speak to duty counsel or his lawyer, nor was he offered telephone to call a parent or other adult, prior to the strip search. This is, again, despite again being told that he had a right to contact a lawyer by a police officer. Although Z.A. removed his clothing item by item to be searched, the clothing was not immediately returned to him. At the end of the search, Z.A. was completely naked.

It is contrary to police policy for a detained person in these circumstances, whether an adult or, as in this case, a young person, to be stripped completely naked. No reason was given why Z.A. was reduced to this condition. [ 32 ] According to the police policy and procedure manual filed in evidence in this case, the officer in charge of a unit, in this case Sergeant James, is to ensure that reasonable grounds exist for a level 3 (strip) search, that the search was conducted appropriately, and that a Search of Person template is completed.

The officers conducting the search, in this case PC’s Gill and Mahmodian, are required to advise the person being searched of the reason for the search. They are also required to record details of the search in their police memo books, including the grounds for the level of search conducted. They are to ensure that a person is not left in a completely naked state at the end of a search.

None of these protocols were complied with in this case. [ 33 ] After hearing all of the evidence- much of it equivocal, speculative and undocumented - I am unable to determine whether the search was authorized, and who authorized it. I am left to speculate which of the many justifications offered, if any, formed the actual basis for the search.

If the search was conducted because the accused was going to be detained for a show cause, I am not able to determine with reasonable precision who made the decision that the accused would be detained for this reason and why. [ 34 ] Sergeant James, stated that, as the officer in charge of the station, he was responsible for deciding whether Z.A. would be strip-searched. Sergeant James had no note of authorizing the search, and did not know who conducted the search.

He testified that he authorized the search because Detective McCormick, the supervisory officer on the case, told him the accused had outstanding charges. Yet Sergeant James could not be sure he did in fact speak to Detective McCormick. He had no note of any conversation with him, and it was conceded that that Detective McCormick had no notes about this case. [ 35 ] For their part, PC’s Gill and Mahmodian, testified that they had no conversation with Detective McCormack. They stated that Detective Flis was the case manager.

Detective Flis did not testify, and there is no evidence he spoke to Sergeant James or authorized a search. Neither PC Gill nor PC Mahmodian could remember who authorized the search, nor did they have any note about it. [ 36 ] Neither arresting officer knew who prepared the Search of Person template, which had all possible grounds for a search ticked off. Sergeant James did not sign the template, although he was required to do so.

PC’s Gill and Mahmodian contradict one another about what occurred during the strip search. [ 37 ] As I have noted, it is clear from the video of the accused being paraded at 4:02 a.m. that Sergeant James said nothing suggesting Z.A. would be subject to a Level 3 search, nor that he would be held in police custody for a show cause. The search was conducted in the interview room prior to 4:25 a.m. At 4:25 a.m. Z.A. reappeared in the booking hall before Sergeant James. His speech and conduct were subdued.

At that time Sergeant James said the following to him: I understand that that you’ll be probably staying with us and appearing in court in the morning and that there are other matters before the courts. As a result the detectives are looking into it. A determination will be made if you are suitable to be released or not. In all likelihood if you are not released you will be transported to court in the morning. We will be dealing with that as we get the investigation going.

Right now you will be lodged in a cell right here until we get you squared away, parent will be contacted, and we will facilitate the use of a phone when necessary. The phone will reach you in there. [ 38 ] Z.A. asked how long he would have to stay and the Sergeant replied “Just going to let the detectives do what they have to do now then we’ll kind of let you know soon as they give us the go ahead.” [ 39 ] Sergeant James testified that he was lying when he told the accused, …the detectives are looking into it.

A determination will be made if you are suitable to be released or not… [ 40 ] He stated that he had already decided that A.Z. would be detained, but since he wanted Z.A. to remain in a calm state he “gave him the hope that he possibly would be released.” Given this explanation, it is surprising to read in Sergeant James’ notes, made at 4:25 a.m., “determination regarding charges / release still being explored. Show cause appears course, other matters before court.” [ emphasis added ] This note substantially accords with what the officer stated to Z.A.

After this entry, Sergeant James “fleshed out his thoughts” in further notations in which he stated he had received information from Detective McCormick prior to 4:25 a.m. about outstanding break and enter charges. [ 41 ] The fact that Z.A. was taken directly to the cells after the second appearance in front of Sergeant James suggests that the sergeant had made the decision that Z.A. would be held for a show cause, and that he was indeed lying to the youth.

Of course Z.A. had not been permitted to speak to a lawyer or a parent prior to the strip search, and lying to him arguably interfered with the youth’s ability to instruct counsel.

In any event, my conclusion that Sergeant James likely made the decision to hold Z.A. for a show cause, does not establish that the decision had been made prior to the strip search, nor that the arresting officers had been advised by Sergeant James or anyone else of the reason, and the authorization, for the strip search. [ 42 ] As is evident from my recitation of the facts in the case, the note-taking by the officers in relation to the arrest in this case was inadequate. This pattern of slip-shod, imprecise, or non-existent note-taking continued at the police station.

The fact that Sergeant James’ notes fail to specify what information he had and when he received it, and erroneously record the source of any information he did receive, provides a further example. [ 43 ] In my view the issue of improper and inadequate note-taking is important in this case for three reasons. The first is because the notes that were taken were not sufficient to successfully refresh the officers’ memories. The charges in this case arose in

April, 2010, and were being tried late in 2011 and 2012. Clearly the officers needed to rely on their notes to refresh their memories.Because the notes were inadequate they failed to recollect important facts. [44] Secondly, a strip search was conducted on a young person in this case. Both the Supreme Court of Canada and theOntario Court of Appeal have repeatedly characterized strip searches as humiliating, degrading and traumatic. The greater theintrusiveness of a search, the greater must be the justification for it.

It is reasonable for the court to expect that the circumstancessurrounding the decision to strip-search a young person would be clearly documented. This was not the case.

If a court cannot determinewho ordered a strip-search, and when and why it was ordered, the court cannot determine both whether the search was a reasonableexercise of police powers, and who was responsible, and therefore accountable, if an unreasonable, unjustified, strip-search took place. [45] Finally, the absence of proper note-taking, by all of the officers who testified in this case, together with their prolongedinaction in affording the young person his right to counsel, suggests the existence of a systemic indifference to the rights of the youngperson, both under the Charter and the Youth Criminal Justice Act.

Section 10(b) [46] In this case there was an on-going breach of Z.A.’s right to counsel while in police custody. I find the first breachoccurred in the context of the demand that Z.A. provide a sample into the approved screening device. [47] Section 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to providebreath samples for testing into an approved screening device. These screening tests, at or near the roadside, determine whether moreconclusive testing is warranted.

Screening tests will necessarily interfere with rights and freedoms guaranteed by the Charter, but only ina manner that is reasonably necessary to protect the public's interest in keeping impaired drivers off the road. (R v Woods [2005] SCC42) As Fish, J. stated in Woods Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 ofthe Canadian Charter of Rights and Freedoms.

But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.(par. 15) [48] The detention under s. 254(2) is constitutionally justifiable under s. 1 of the Charter for the very reason that the detentionis of very brief duration.(Bernshaw) For this reason, the screening test must be administered “forthwith.” [49] In Regina v Degiorgio [2011] O.J. no 3337 (Ont. C.A.), the Ontario Court of Appeal addressed the interaction betweenthe right to counsel protected by s. 10(

b) of the Charter, and cases, such as the one at bar, involving an outright refusal to provide asample: The right to counsel is triggered upon detention at the roadside. That right is, however, effectively suspended by operation of s. 1 of theCharter for the time period captured by the requirement that the sample be taken "forthwith". If the demand is made and the sampleprovided within the forthwith window of time, the Charter is not breached. If, however, the forthwith window expires, then the taking ofa sample without first providing the detainee an opportunity to contact counsel is an infringement of s. 10(

b) that cannot be saved by s. 1. The analysis in refusal cases should be the same. [50] The jurisprudence governing this case clearly starts from the proposition that the violation of the Charter rights of adetainee entailed by the breathalyser legislation must be justified. The onus is on the Crown to lead adequate evidence to establish thejustification. In this case, the inadequacy of the evidence has frustrated the ability of the court to perform the necessary analysis. Clearlytime is of the essence under section 254(2).

It is reasonable to expect the police to properly record the times during which significantevents occurred to insure the integrity of their evidence on the most important issues in the case. The evidence I have received does notpermit a precise finding about the time the demands and the refusals were made, nor about the time the Approved Screening Devicearrived, and hence does not permit the court to determine whether the denial of the

Section 10(

b) right to counsel was justified. [51] Notwithstanding the foregoing, I am able to conclude, based on the evidence I do accept, the demands and the refusals inthis case formed part of a continuing transaction which was only completed upon the fourth and final refusal. I say this first because PCGill offered Z.A. four opportunities to provide a sample before he effected the arrest. Two of these demands occurred after the ApprovedScreening Device arrived. Thus the officer himself did not believe that the refusal was complete until after the fourth demand.

Secondly,the arrangements to bring the machine to the location also indicate that the officer did not regard the refusals as final. Finally, PC Gillonly cautioned Z.A. about the implications of refusing after the third demand. [52] I have considered the

summary of the meaning of the “immediacy” requirement in Regina v. Quansah 2012 ONCA 123, [2012] O.J.

No. 779 (Ont.C.A.) Given the state of the evidence, and my conclusion that the demands and refusals formed onecontinuous transaction, I attribute the period from the commencement of the police investigation at (possibly) 2:26 a.m. to the time of thearrest (2:42 a.m.), as the time “from the formation of reasonable suspicion to the making of the demand to the detainee's response to thedemand by refusing or providing a sample.” From beginning to end, the interaction in the parking lot lasted no less than 16 minutes.Could the police realistically have fulfilled their obligation to implement the youth’s

section 10(

b) rights before requiring the finalsample? [53] In R. v. George (ON CA), [2004]O.J. No. 3287, The Ontario Court of Appeal held that the ready availability of a telephone is a relevant factor for the court to consider in determining whether a detainee had a reasonableopportunity to consult counsel during the period of time between the issuance of the demand and the time at which the demand could

actually be carried out… It was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consultcounsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that therespondent would have used his cellular telephone and called his lawyer. [54] Z.A. was carrying a cell phone which had his lawyer’s phone number in it. The officer could easily have ascertained thesefacts. The evidence is that Z.A, would have used his phone and called his lawyer. He may have been rude, but he was not violent.

In myview over the sixteen minutes of this encounter, there was a realistic opportunity for Z.A. to seek and receive advice from his lawyer.The officers could have exited the car and permitted the accused to make a call. Given that such an opportunity existed, the justificationfor breaching the accused’s right to counsel upon detention disappeared. (R. v. Cote, (1992), (ON CA), 70 C.C.C. (3d)280 (S.C.C.); R. v. Torsney, (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 (Ont.

C.A.)) [55] In my view, the subsequent conduct of the officers reflects back on the seriousness with which the officers treated thesuspension of the youth’s Charter rights during the demand process. The officers and the accused remained at the scene preparing thePromise to Appear for over an hour after the accused had been arrested. Throughout this period, during which the accused was botharrested and detained, it never occurred to either officer to ask the accused if he had a lawyer, if he had a cell phone, or if he wished tocall a lawyer. The officers were well aware they had arrested a young person.

He told them he wanted to speak to a lawyer. He had a cellphone with his lawyer’s number in it. Notwithstanding that the officer intended to release the accused, he continued to be detained, andhis right to counsel could have and should have been accommodated.

Had this right been accommodated, it is possible the subsequentstruggle with the police might have been avoided. [56] Finally, and most tellingly, Z.A., a young person entitled to special consideration, having been detained and arrested sometime after 2:20 a.m., was taken to the station, booked, placed in a small interview room, strip searched, and not permitted to speak tolawyer until 5:00 a.m.. Even then, despite having repeatedly told the officers he had a lawyer, he was put in touch with duty counsel. Atno time was he permitted to speak to his own lawyer.

In my view Z.A.’s right to counsel was simply not taken seriously by any of theofficers who dealt with him. [57] The youth of the accused in this case is an important factor that must be considered in assessing whether there has been aCharter breach in this case. The Youth Criminal Justice Act provides as follows at

section 25, under the heading “Right to Counsel: 25.

(1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage ofproceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicialproceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person. Arresting officer to advise young person of right to counsel

(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officeror the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel. [58] Thus a youth who is arrested and detained is entitled, in some respects, not simply to be treated in the same manner as anadult.

Section 3 of the Youth Criminal Justice Act provides that (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy,are protected, (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in theprocesses, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of theirrights and freedoms, (emphasis added) [59] In the case of R. v. D.B., the Supreme Court of Canada held that young people are entitled to a presumption of diminishedmoral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturityand a reduced capacity for moral judgment.

This principle will shortly be enshrined in the Declaration of Principles in the Youth CriminalJustice Act. While a youth’s right to counsel, like that of an adult, is subject to reasonable limits prescribed by law, (R. v. P.D., [2009]O.J. No. 1594 (Ont. S.C.)), the right to counsel on arrest and detention remains one of the most crucial elements in the enhancedprocedural protections, and special guarantees, that are available to young persons under the Act.

These guarantees cast singularobligations on police officers to fully advise detained youths of their right to counsel and to facilitate the implementation of their rights. [60] In this case PC Gill gave a standard Approved Screening Device Demand, a standard refusal caution, and a standard rightto counsel read from the back of his note pad. The Supreme Court has criticized the use by police of standard forms advising youngpeople of their legal rights without some accompanying effort to ensure the youth’s understanding of what he has been told. In R. v.L.T.H. 2008 SCC 49 , [2008] S.C.J.

No. 50 (S.C.C.), Fish, J. states that compliance with the obligation to inform a youth of hisrights (in that case under

section 146 of the Youth Criminal Justice Act) is “a matter of substance, not form”. , and that … adherence to standardized forms can facilitate, but will not always constitute, compliance with s. 146(2)(b).... 29 The requirement of understanding and appreciation applies to all young persons, including those who are no strangers to thecriminal justice system.

[61] While I recognize that

section 146 is not engaged in this case, it seems logical that “the requirement of understanding andappreciation” apply with equal force when an officer is informing a youth of his legal obligations and most importantly of hisconstitutional rights. An individualized approach that takes into account the age and understanding of a particular youth requires that adialogue take place between the youth and the officer, so the officer can assess the degree to which the youth is able to understand whatthe officer has just told him.

No such dialogue took place in this case. [62] I also recognize that the officers were dealing with a youth who they may have regarded as “a worldly wise, smug 17-year-old with apparent anti-social tendencies,” the type of youth described by Cory, J. in R. v. J. (J.T.), (SCC), [1990] 2S.C.R. 755. Nonetheless, as Justice Cory observed (in connection with

section 56 of the Young Offenders Act): 18 ... it must be remembered that the

section is to protect all young people of 17 years or less. A young person is usually far moreeasily impressed and influenced by authoritarian figures.

No matter what the bravado and braggadocio that young people may display, itis unlikely that they will appreciate their legal rights in a general sense or [page767] the consequences of oral statements made to personsin authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults. [63] Thus Cory, J. concludes that The requirements of s. 56 must be complied with whether the authorities are dealing with the nervous and naive or the street-smart andworldly-wise…. Principles of fairness require that the

section be applied uniformly to all without regard to the characteristics of theparticular young person. [64] To which I would add that a youth who says “I’m not doing shit and you can’t make me” and “Fuck you bitch,” isparticularly in need of legal advice. Such an outrageous and inappropriate reaction reveals only the youth’s complete ignorance of thegravity of the jeopardy in which he finds himself.

In my view, the common sense strictures articulated by Justice Cory and echoed byJustice Fish, apply a fortiori to the test for compliance with a police officer’s duty to advise a youth of his right to instruct and retaincounsel without delay. [65] I have found that there was a realistic and reasonable opportunity for Z.A. to consult his counsel in this case, and that hewas denied this opportunity. I conclude there must be a Charter analysis “because the rights are not suspended.”(R. v. Grant, (SCC), [1991] 3 S.C.R. 139 (SCC)).

I have found that the police at no time had a serious intention to facilitate Z.A.’s right toany counsel until after he had been lodged in the police cells two and a half hours after PC Gill formed his reasonable suspicion. I havefound that the breach of the right to counsel was more serious in this case because the officers were dealing with a youth. In the result,Z.A. has established a breach of his right to counsel under

section 10(

b) of the Charter.

Section 8 [66] Before setting out the law and pertinent factors relating to a strip search, it is important that certain of my factual findingsbe placed before the reader of this judgment: I have found in this case there were no reasonably based concerns that A.Z., a youngperson, was in possession of weapons, contraband or hidden evidence. Although he was rude, there is no evidence he was predisposed toor had a history of violence. The youth had already been subject to two searches. The cell phone was not a weapon.

His only “violence”was a struggle over the phone in an effort to call his lawyer. [67] In Regina v Golden, the Supreme Court stated that strip searches are …a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. …Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitivelyconducted strip search is highly intrusive [68] The strip search in this case was a warrantless search.

The onus falls upon the Crown to establish that it was reasonable.While a common law power to strip search incident to a lawful arrest exists, the power is subject to limitations imposed by the Charter.In Golden, the Supreme Court of Canada articulated a number of these limitations. The following, at the least, are relevant to the facts inthis case: • A "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused hassecreted weapons on his person.

Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particularcircumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified; • Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weaponsupon his person is not sufficient to justify a strip search; • The more intrusive the search, the greater the degree of justification and constitutional protection that is appropriate; • Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees.

The fact that a stripsearch is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable withinthe meaning of s. 8 of the Charter; • A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee; • A "routine" strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason forperforming a strip search in the circumstances of the arrest;

• Where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealingweapons or illegal drugs on their persons prior to their entry into the prison environment; • While police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harmthemselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of allarrestees; • A framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charterincludes the following: o Will the strip search be authorized by a police officer acting in a supervisory capacity? o Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at anyone time? o Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? [69] In their testimony, the officers suggested a variety of reasons why the accused might have been strip searched: for thesafety of others and officers because he was being placed in the cells (although the youth was to be placed in an empty youth cell, andwould be handcuffed until placed there); because of his behaviour (although the behaviour was not violent, and the youth had calmeddown before he was placed in the interview room); because the money in his pocket suggested he might have been selling drugs andmight be in possession of drugs (although there was nothing in the evidence upon which to base this suspicion); because Z.A. might be inpossession of a weapon or contraband, and had to be searched for the safety of the police and others (although there was no discussionbetween the officers of any suspicion relating to drugs or weapons, and the accused had already been subjected to two searches – a patdown search and a search of his pockets); that Z.A. was assaultive, (although his only “assaultive” conduct was the brief struggle in thepolice vehicle when the accused was attempting to call his lawyer and “protect his phone”), and because he might be a danger to himselfand others resulting from the consumption of alcohol or drugs (although Sergeant James did not smell alcohol on the accused’s breathand noted no credible indicia of drug use).

As Justice Nakasuru pointed out in Regina v. Samuels, 2008 ONCJ 85 , [2008] O.J.No. 786 (O.C.J.), the type of offence, in the case at bar the offence of refusing a breath sample, is not one which “inherently raises thepotential that the accused may have a weapon, evidence connected to the offence, or general contraband upon his person.” [70] As I have indicated, based on the foregoing, my conclusion in this case is that there were no reasonably based concernsthat Z.A., a young person, was in possession of weapons, contraband or hidden evidence, or that he would pose a danger to himself orothers.

Although he was rude, there is no evidence he was predisposed or had a history of violence. He had already been subject to twosearches. The cell phone was not a weapon. The only “violence” was a struggle over the phone. In my view, the struggle with the policeover the phone, and the accused’s loud and insolent behaviour in the booking hall, and the other reasons suggested, may have contributedto the police willingness to strip search the accused, but were not the justification for it. This youth was originally arrested for refusing toprovide a breath sample.

Why then was he subjected to a strip search? [71] Sergeant James, the officer in charge of authorizing strip searches, who denied having a blanket policy on the issue,testified that: “If he’s going into custodial custody the procedure is not to lodge him until he is properly searched”.

By “properlysearched” he meant “strip searched.”PC Gill testified that “If someone is going to be held in custody for a show cause, a level 3 searchwill be done.” I find that the most reasonable conclusion, based on the evidence, is that the accused was searched, as a matter of policy,because he was going to be held for a show cause. This policy was absolute, the practice was understood by all the officers involved, andwas so routine that it was not necessary for the officers to give or note formal authorizations.

As Sergeant James testified: “…the officersknow my style.” [72] Even if the fact that the accused was going to be taken to court for a show cause is a compelling reason to search theaccused, I find that the search was not conducted in compliance with the requirements of the Charter. It was conducted without regardfor Z.A’s youth, his right to speak to counsel, and his right to speak to a parent or other adult. There were no exigent circumstances tojustify these breaches. The reason for the strip search was never explained to A.Z.

There is no evidence the search was properlyauthorized, there was no reporting up the chain of command, and there was no proper record-keeping. Z.A. was left fully undressed atthe conclusion of the search. [73] Contrary to the requirements in Golden, the strip search was carried out as a matter of routine policy without regard to theindividual circumstances of the youth and the necessity for a strip search in his case.

Golden holds that “The prerequisites for andconsiderations surrounding the conduct of a valid strip search seek to balance the competing interests of valid law enforcement goals onthe one hand, and individual privacy rights on the other.” I do not find that any effort to balance these interests occurred in this case. Theindividual privacy rights were very high, and the evidence does not support a finding that the law enforcement goals required a stripsearch. In all of these circumstances I find that Z.A.’s rights under

section 8 of the Charter were violated. Remedy: Stay of Proceedings [74] I am unable to find a suitable remedy for the breaches that occurred in this case short of a stay. [75] The principles governing an application for a stay of proceedings are well-established. Because of the drastic nature ofthe remedy, granting a stay of proceedings will be appropriate only "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or whereirreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. (R. v.

O’Connor [1995 ]CanLII 51 (SCC) [76] The latter class of cases are said to fall into a “residual category”, and I find that this case falls into that category.

Because of its routine and systemic nature, it appears to me that the misconduct of the police I have identified is likely to continue in thefuture. In Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC)) the court states that: The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. *** A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent.

If it is appropriate touse punitive language at all, then probably the best way to describe a stay is as a specific deterrent -- a remedy aimed at preventing theperpetuation or aggravation of a particular abuse. [77] Tobiass suggests that in cases where uncertainty persists about whether the abuse is sufficient to warrant the drasticremedy of a stay, a third criterion may be considered. The interests that would be served by the granting of a stay of proceedings may bebalanced against the interest that society has in having a final decision on the merits.

In such cases a stay of proceedings will be anappropriate and fair remedy where: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice [78] Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay canrectify the problem, a judge may exercise the discretion to grant a stay. [79] In my view the case at bar falls to be analyzed under the third criterion.

The accused in this case is a young personwithout a criminal record. His behaviour was foolish, offensive, and immature, but it was based on a naïve

interpretation of his rights, aninterpretation that was correct in some sense, but did not justify his resistance to the police. While drinking and driving is an offence ofthe most serious order, and assaulting a police officer is also a serious crime, the alleged assault was minor and occurred while the youngperson was trying to assert his rights. The alleged existence of alcohol in Z.A.’s system while driving was also a significant concern, butmust be appreciated in light of all the circumstances. On the other hand, the pattern of conduct by the police was serious by virtue of itssystemic nature. The police disregard of Z.A.’s rights as a young person, including his Charter rights under

section 8 and 10(b), occurredas a matter of routine and without thought. [80] I do not discount the provocative character of the youth’s behaviour in this case, but the police are not entitled to choose aparticular model detainee before they choose to afford a detainee constitutional and legal rights. It is not only the very young andobviously vulnerable who are entitled to protection under the Charter and the Youth Criminal Justice Act. At best the accused in thiscase had a flawed and imprecise appreciation of his rights.

The ease with which Z.A.’s rights were disregarded, and the absence of anysense of accountability by all the officers, speaks to the on-going nature of the violations exemplified by this case. The court mustconcern itself with the issue of a failure to be accountable by those who are in a position to meet or ignore constitutional requirements. Incircumstances where such requirements are ignored as a matter of course, it is left to the court to call attention to the importance ofsafeguarding the right to counsel and the right to be free of unreasonable and highly intrusive searches.

I have found that that theproblems I have identified are systemic in nature, and a stay must be ordered to address the prejudice to the justice system which wouldflow from allowing the prosecution to proceed, while at the same time the systemic problems, to which the accused was subjected,remain unaddressed. No other remedy is reasonably capable of removing that prejudice. The charges are therefore stayed. Released: August 29, 2012 Signed: “Justice Marion Cohen”