HER MAJESTY THE QUEEN Respondent - v. -, 2018 ONCJ 599

CITATION : R. v.

Uhuangho , 2018 ONCJ 599 DATE : September 7, 2018 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: HER MAJESTY THE QUEEN Respondent - and - PETER ESE-OSA UHUANGHO Applicant Ruling on Charter of Rights Application regarding Strip Search of Accused at Police Station prior to Breath Testing Procedure Heard : 4 May 2018, 21 June 2018, 17 July 2018, 25 July 2018; Judgment : 7 September 2018 (162 paras) Counsel for Applicant: Robert Tomovski Counsel for Respondent: Nancy Laton Libman J: - INTRODUCTION [ 1 ] The defendant in this case was investigated by the police in the early morning hours of 1 August 2016, on Highway 401 near Keele Street, after being involved in a motor vehicle accident.

He was returning, at the time, from a baptism celebration and wearing what has been described as a full-length white religious cloak or cultural robe that he had on during the ceremony. After failing the roadside screening device, he was arrested for driving “over 80 mgs.” and taken to the Toronto OPP detachment at Keele and Wilson to provide breath samples. [ 2 ] Once inside the booking or lodging area of the police station, an officer noticed that there was a draw string protruding from the waist band of the defendant’s pants. For safety reasons the police officer wished to remove this draw string.

However, it would not come off as it was attached to the pants.

The defendant says he was then directed by the officer to take his pants off in the presence of other police officers, although he did not wish to do so, as it is contrary to his religious beliefs for him to be seen in public in his temple garments that are underneath his pants; the officer dealing with him claimed the defendant took his pants off on his own so as not to damage them by removing the draw string, and as they were soaked in urine this was also done for his comfort. [ 3 ] There is no audio recording, but only video, of what was actually said by the parties during these crucial interactions in this booking area, although there is both audio and video recording of the breath room which is just a few feet away.

There is nothing in the notes of the officer who spoke to the defendant about their conversation respecting the reason to remove his draw string, or the defendant agreeing to take off his pants.

Neither is there anything in the officer’s notes saying the defendant had urinated in his clothes; in fact, no other officer, including the breath testing operator, observed any odour or presence of urine on the defendant throughout their dealings with him. [ 4 ] What is captured on these video tapes, however, during most of the defendant’s interactions with both male and female police officers, is this defendant clad in only a long top and underwear and socks.

He remained in such a state of undress during the entirety of his time at the police station following the booking process, including the breath testing procedure in which he is alleged to have refused to provide a sample.

No one thought to provide him with a blanket or privacy gown to cover himself, as he did not ask for one, and the officers believed he was adequately clothed. [ 5 ] I consider that the manner in which the defendant was strip searched and subsequently remained in a state of undress while being investigated and asked to provide breath samples, all the while being videotaped at the police station, constitutes a gross affront to his human dignity.

In short, removing a detainee’s pants and leaving the person in their underwear and top, whatever its length, while investigating him, much less administering a test to determine his blood alcohol concentration, is humiliating, degrading and unreasonable. It follows that it is also highly offensive to the community’s sense of fair play and decency. As a result, a stay of proceedings is an appropriate remedy in the circumstances of this case. THE ARREST OF THE DEFENDANT

[ 6 ] Constable Mogan responded to a request to attend a motor vehicle collision on 1 August 2016 on Highway 401 just east of Keele Street. She arrived at 2:01a.m. She observed a male and female standing in front of a Toyota SUV motor vehicle that was blocking a live lane of traffic. There was extensive front end damage to the vehicle; both air bags had been deployed. [ 7 ] After determining that the parties were okay, the female identified herself to the officer as the driver of the vehicle. The male was said to be its registered owner.

After initially not responding verbally, the male, who is the defendant, indicated where the documents and car keys were located. The officer was unable to retrieve them from the vehicle due to the glove compartment not opening. The defendant was on his cell phone during this time. [ 8 ] A tow truck was on scene. Constable Mogan asked the parties to sit inside it for their safety. It hooked up the car. The female party was asked to provide a statement about what happened. When the officer went to check on her statement, she noticed that what was written had been crossed out. The party then asked for another form.

The officer questioned her about what she had written. At this point the female party indicated the defendant was actually the driver. When the officer asked him to confirm this, he nodded his head, yes. [ 9 ] The defendant proceeded to retrieve his driver’s licence and vehicle documents from the SUV and gave them to the officer. The female told her, in the meantime, that she had identified herself as the driver as they had been at a party and the defendant had been drinking alcohol. When the defendant returned, the officer could smell alcohol coming from his breath.

She read him the demand to provide a breath sample into the roadside screening device as a result. He replied “sure”. The result was a fail at 2:28a.m. He was then arrested for driving “over 80 mgs” and given his rights to counsel and read the breath demand. The caution was also read. He replied that he understood and shook his head that he had nothing to say.

They left the scene at 2:31a.m, and arrived at the detachment at 2:42a.m. [ 10 ] Constable Mogan escorted the defendant to the lodging or booking area, where she was assisted by a male officer, Constable DeLisi, who asked the defendant if he wanted to speak to a lawyer. He said that he did. Constable Mogan then left to place a call to duty counsel at 2:45a.m. The call was returned at 2:48a.m.

At that point, Constable Mogan opened the door to the privacy booth and handed the defendant the phone so he could go inside and speak to the lawyer; however, he refused to enter the booth at first, and spoke to the lawyer from outside it. The call ended at 2:52a.m. From there they went directly to the breath testing room. At 2:56a.m. the officer gave custody of the defendant to the qualified Intoxilyzer operator. She informed him of her reasons for the arrest.

From there she worked on other aspects of the investigation, including taking a statement from the defendant’s female companion who was at the detachment. [ 11 ] As for the defendant’s appearance, Constable Mogan described him as wearing light coloured clothing: a long-sleeved long shirt to his knees and light coloured pants. She was aware that his pants were removed at one point, although she was not present when this happened.

He did have his pants on when they arrived at the detachment. [ 12 ] The witness acknowledged in cross-examination that she did not feel the need to request back-up when she was investigating the defendant and his female companion at the accident scene. She was not fearful for her safety due to his behavior. He responded to her questions, although not always verbally; he was not argumentative at any point.

He accompanied her willingly to the police cruiser to provide his breath sample at the roadside and answered her questions appropriately upon being arrested. [ 13 ] With respect to the defendant refusing to enter the privacy booth at the police station to speak to duty counsel, the officer agreed he was not being difficult, and it was his choice whether or not to enter the booth. She had no safety concerns in handing him a telephone with a long chord. [ 14 ] There was nothing in the officer’s notes about the defendant’s pants being removed.

Although his pants were on when they were together, she did recall seeing him without his pants when she saw him later in the morning. She noticed that his legs were bare, although she did not know if he was wearing shorts or underwear. She did not know why his pants had been removed at the station. She had not observed any hostility or argumentative behavior directed at her while they were at the detachment. The defendant did not say anything to her about being embarrassed while not wearing his pants.

THE DEFEANDANT’S BOOKING PROCESS AT THE OPP DETACHMENT [ 15 ] Constable DeLisi, an OPP officer since 2015, assisted with the booking or lodging of the defendant for processing when he entered the OPP detachment. He explained that this process generally consists of searching the person one more time to ensure that any valuables are kept for safe keeping, and that there are no weapons to harm the person or others. There is a caution that is read aloud before placing the person in the cells. Emergency contact information is taken down, as well as determining if any alcohol or drugs have had an adverse effect.

The prisoner is told the room is videotaped and the breath room is also audio taped. There is a warning about damaging property. Valuables are lodged in a drawer, and times are kept for entering each room. [ 16 ] On the evening in question the officer became involved at 2:42a.m. when Constable Mogan came back to the station with a male accused. He escorted the defendant to the cell area and began the lodging procedure to start his processing. The defendant was informed he could speak to counsel of choice and that the breath testing procedure would start.

He also advised him that the room was videotaped and pointed out the notice on the wall stating they were being recorded. After escorting the defendant to the cell area, he removed his hand cuffs and searched him. His jewelry and cell phone were placed in the property drawer. [ 17 ] According to the officer, the defendant was “verbally aggressive” and “extremely uncooperative”. He would do the opposite of what he was asked. In his words, if he asked him to sit down he would stand up. [ 18 ] Constable DeLisi asked the defendant to remove the draw string on his pants as he considered it to be a choking hazard.

There were to be no strings or laces on pants for this reason. This request made the defendant “more aggressive”. He then removed his own pants and tossed them away. He was wearing a full robe at the time. When his pants were taken off, he was covered by long white boxer shorts. The officer was satisfied that he was properly dressed at the time. [ 19 ] The defendant was being “very difficult” at times, stated the witness. He was using racial slurs about white police officers and made derogatory comments about the female officer who arrested him.

Following the breath testing procedure, he refused to come out of his

cell after 4:00a.m. so that he could be fingerprinted and released on bail. He told the officer that he was not a criminal. He would not comply although he was told that he would be held for a bail hearing as a result. [ 20 ] Constable DeLisi described the defendant as being uncooperative, verbally aggressive and rude. By way of examples, he was disobeying basic commands, and purposely trying to be difficult. When he leaned against the wall, he almost set off the panic button. It was when he was upset that he disrobed. The officer stated that the defendant’s pants were “soaked with urine”.

He folded them and put them away. However, the defendant maintained the officers were “bad guys”, whereas Constable DeLisi was very professional while the defendant showed him nothing but disrespect. [ 21 ] The booking room videotape was played for the witness. It shows the defendant arriving in the lodging area at 2:35:53. There is no audio in this area of the detachment. His cuffs were removed shortly afterwards and there was one last frisk search for weapons and drugs.

It was at 2:41:48 that the defendant was told he had to remove his pants as the draw string could be used as a weapon against himself or others. After trying to reason with him to take off his pants, the defendant did so and tossed them at the officer. [ 22 ] There were four officers present when the defendant took off his pants. He did this in plain view of all of them, including Constable Mogan. The witness stated he was shocked that the defendant did so. He thought he did not want his pants to be damaged by removing the string.

The officer considered that he was properly covered and told him not to remove his over-garment. It was after this time that the defendant was handed the telephone to speak with a lawyer. [ 23 ] The witness described the defendant’s outfit as being a cultural robe, similar to what judges wear but everything was white. When his pants were removed he noticed they were “soaked”. They were placed in the property bin. When he asked the defendant to remove the draw string from his pants, the defendant said he didn’t want to damage his pants. He was talking over him and being argumentative.

The officer did not want him to be wearing soaked pants. At no point did he tell the defendant to remove his pants. He did not expect him to do so. [ 24 ] According to the officer, the other officers were laughing at the defendant, as shown at 2:42:17 of the videotape, when he refused to enter the privacy booth to speak to duty counsel. It appeared that he was “going out of the way” to be difficult. He did enter the privacy booth at 2:43:15 and exited it a minute later. At 2:44:54 Constable Mogan escorted him into the breath testing room.

He remained in his top and underwear and socks at this time when he was with her. [ 25 ] In cross-examination, Constable DeLisi acknowledged that there was nothing in his notes about the defendant taking off his pants or anything he said to him about removing the draw string. In fact, he did not make any entries in his notes about the incident and agreed there was no audio recording of what was said. The incident did stick out, though, in his memory.

It was a “fluid situation”: the defendant was standing when he would not sit, he crossed his arms, and was leaning against the wall very near the panic button. [ 26 ] The witness agreed that the derogatory comments the accused uttered about the female officer were not noted by him either. However, it upset him as he knew Constable Mogan to be a professional officer, and the comments were racial and sexist. Prior to his entering the lodging area, the defendant was compliant in the sally-port and not acting aggressive at any point or struggling.

He did not recall there being any safety concerns when he took custody of the defendant from the female officer. [ 27 ] When the officer realized there was a draw string on the defendant’s pants, he agreed that he directed him to take it off. He was asked if the defendant replied that he could not remove it as it kept his pants up; the officer stated that the draw string was not tied, and police policy was to take it out. A senior officer also agreed with this decision. He denied making any attempt to remove the draw string himself.

The officer did not want to pull it out as the accused asked him not to damage his pants and he was making this “an issue”. Constable DeLisi disagreed that the defendant did not want to remove the draw string and insisted that it was the defendant who removed his pants on his own. He did not tell him to remove his pants.

Neither did he decide to just have him take his pants off when he realized the draw string would not come out. [ 28 ] It was relevant to the investigation of the defendant for drinking and driving, the officer stated, that his pants were soaked in urine and he did not want him to be uncomfortable wearing them in that state. There was no reference to this in his notes though. Moreover, the defendant was “well covered” without his pants and appeared to be comfortable. While there were male and female officers in the same room as the defendant, he had on long white coverings and boxer shorts.

Constable DeLisi did not see the need to offer him a blanket when he went into the breath room as it was warm out and his robe provided him full coverage down to his knees. Neither did he offer him a privacy gown as he removed his pants on his own volition, and tossed them away as if they were of no value. [ 29 ] Constable DeLisi was asked if he had ever seen breath tests conducted of someone in their underwear. He recalled a previous occasion where the person’s pants fell off due to being inebriated.

In this instance, he did not offer to give the defendant his pants back as they were soaked in urine and he appeared to be comfortable. He agreed he did not make any note to this effect. He was not present at the station to see the defendant have his pants returned. As far as he was concerned, the defendant was appropriately dressed and properly covered during the time they were together. [ 30 ] The witness maintained that at no time did he direct the defendant to give him his pants, and he was shocked when he took them off.

When asked if the defendant gave him a reason for removing his clothing, he replied that he believed he did not want to damage the pants. However, there are no words attributed to him in his notes. The defendant was talking over him, and while he could not remember his exact words he was quite certain that he did not want his pants to get damaged. In fact, he could not get them off “fast enough”. According to the officer, he was being difficult and “purposely rude and annoying”.

He acknowledged, though, that his angry and aggressive behavior began when they were in the booking or lodging area and the officer started to have him remove his shoes and outer garments. BREATH TESTING PROCEDURE [ 31 ] Constable Badiu was the qualified Intoxilyzer operator on the evening in question. He was given custody of the defendant at 2:51a.m. in the breath room. This room is capable of audio and video recording at all times. Accordingly, the tape commenced at 2:44:43 when Constable Mogan entered the room and answered his questions about her grounds for arrest and whether the defendant

was advised of his rights to counsel. The defendant was seated at the time in a chair next to the approved instrument and Constable Badiu. The officer noticed that his knees were exposed. [ 32 ] The officer asked him if he agreed with what Constable Mogan said. He replied that he did not. Constable Badiu then read him his rights but the defendant looked away. He denied driving the car and said he did not understand the caution. When he was asked if there was any reason he could not provide a breath sample, he replied that he was not “taking the sample”.

After stating that he did not understand the demand to provide a breath sample, the officer explained it again and offered to let him speak to a lawyer for a second time. At 2:55:55 the defendant left the breath room with Constable Mogan to go to the privacy booth where a lawyer was on the line. [ 33 ] When the defendant first entered the breath room Constable Badiu stated that he was concentrating on Constable Mogan who was reviewing her grounds for the arrest. It was after this point that he introduced himself to the accused, explained his role and told him to sit down while everything was being recorded.

The officer was satisfied with the information he received from the arresting officer about the defendant’s arrest. [ 34 ] The witness stated that it was hard to communicate at times with the defendant for some reason. When he asked him if he understood what he said, his reply was that he did not drive the car. He did speak English and at no time asked the officer to repeat or explain what he said. However, after reading him the secondary caution, the defendant’s reply was that he didn’t understand and not to ask him “stupid questions”.

The officer was not able to clarify what part he was not understanding. [ 35 ] At 3:00:36 the defendant returned to the breath room. He confirmed that he had spoken to a lawyer and then put some gum into his mouth. The officer repeated the charge and cautions and breath demand to him at that time. He stepped out of the room to get him something to drink when he started coughing at 3:05:06. When he asked if the defendant was ill, his reply was that he was diabetic and took medication for it. [ 36 ] Constable Badiu turned on the breath testing equipment at 3:10:09.

He presented the mouthpiece to the defendant and warned him that refusing to provide a sample carried the same penalty as blowing over the legal limit. The defendant replied that he did not have to provide a sample. He also said he would never provide one. There was talking over each other during this time. The officer told him that he smelled alcohol on his breath so he must have alcohol in his system. At 3:16:28 he stated that he was under an obligation to provide breath samples. He explained for a third time that he would be charged if he refused to give one.

The defendant then told the officer that the officer was drunk. Constable Badiu replied that he had already passed the self-test. [ 37 ] At 3:19:03 he presented the mouthpiece to the defendant and asked if he was going to cooperate or not. There was no response. The officer told him he was not there to talk about what happened before and showed him the mouthpiece again. The defendant told him he was on medication. Constable Badiu replied that he thought he was playing games with him. He asked him again at 3:23:40 if he wanted to provide a sample or not. The defendant did not respond.

The officer set up the machine for a second time at 3:25:14 and asked him if he would take the test. The defendant repeated he was diabetic and was unable to blow into the machine. The officer warned him that he thought he was playing games. While the defendant was complaining of his arrest, the machine beeped and timed out at 3:29:33. The accused then left the room at 3:30:08 and the video stopped. [ 38 ] It was conceded by the defence that the approved instrument was in proper working order on the evening in question.

As a result, the witness did not review the diagnostics test, calibration or instrument display readiness in his evidence. In terms of his dealings with the defendant, he stated that there was “lots of conversation” between them. On numerous occasions he said that he would not provide a sample unless a gun was put to his head. He often cut off the officer’s conversation when he tried to explain himself. And although he claimed to be diabetic, he was not taking any insulin and appeared to be breathing properly. [ 39 ] In the officer’s opinion, the defendant was capable of providing a breath sample that day.

He explained multiple times that he would be charged with refusal, which carried the same penalty as operating the motor vehicle over the legal limit; however, at no time did the defendant show a willingness to provide a sample. The officer smelled a strong odour of alcohol on his breath while they spoke, and his eyes were bloodshot during the interview. His speech also appeared to be slurred. [ 40 ] Constable Badiu was asked if he could recall the words that were slurred by the defendant in cross-examination.

He could not say what they were but stated there were many times he had to ask the defendant to repeat himself. He agreed it was possible that this was just due to the way he spoke. [ 41 ] At no time did the officer smell any urine on the defendant. He also did not notice any urine on his underwear or shirt, although he did not look for urine specifically, and was not part of the booking process. His first interaction with the defendant was when he came into the breath room. He did observe, though, that he was not wearing pants and had on a long shirt.

He thought the defendant was wearing short pants, but he did have something else on prior. It did not look like underwear to him. The officer agreed that the defendant had on different clothing when he entered the station and went through the lodging process. [ 42 ] Although the officer maintained that it did not look like the defendant was wearing underwear in the breath room, he agreed that he could see his skin and that he would cross his legs many times. His hands were also together on top of his lap for the majority of the time. He saw him rub his legs and move a lot while they were together.

At no time did he ask him if he was cold. Neither did he ask him if he wanted his pants back or a blanket. The officer noted that the defendant did request water at one point which he accommodated, and he could have asked for a blanket if he was cold. [ 43 ] The witness stated that he asked the defendant many times if he wanted to provide a sample of his breath or not. At a few points he also said he was not under an obligation to blow or not. He agreed he stated this at 3:22:55 when the tape was re-played for him. At 3:25:31 he told him he was not obliged to blow but if you do refuse you can be charged.

The officer disagreed that he was sending mixed messages to the defendant, as many times he made it clear that he did not wish to blow into the machine. He explained that it was his choice, however there were consequences for his refusal to do so. The accused acknowledged that he understood. [ 44 ] There were a few times when the defendant made reference to the officer having to put a gun to his head to make him provide a breath sample. He did not take this comment seriously. The first time the defendant said this, the words were that the officer had a gun,

“you can do what you want you can shoot me”. Constable Badiu agreed this is what he said when the tape at 3:07:00 was played back for him. [ 45 ] In re-examination the officer was asked if the defendant at any point in the room stated he was cold. He replied that he did not. He never asked for a blanket. He also did not request that he be given any further clothing. EVENTS FOLLOWING BREATH TESTING PROCEDURE [ 46 ] Sgt. Winniarski was the supervising officer at the OPP detachment in question.

He was advised by Constables Mogan and DeLisi at 4a.m. that the defendant would not sign his promise to appear release documents or agree to go for fingerprinting and photographs. As a result, he proceeded to the cells area to talk to the defendant. This was at 4:02a.m. He observed at that time the accused laying on his side; the defendant turned away from him and faced the wall. The officer then spoke to him about the release process. However, the defendant was argumentative and uncooperative, stating that he was not a “criminal” and would not give his prints and photograph.

He added, “I am not signing anything, you can keep me here until I die.” The officer left the cell at 4:16a.m. The accused was held for a bail hearing as a result [ 47 ] The witness also testified that the defendant asked him to pull out a gun and shoot him. He replied that that was not going to happen. He did not think the defendant was making any sense at this point. Sgt. Winniarski had no further dealings with the defendant afterwards.

He was aware that he was taken to court for a bail hearing later that morning, but did not know when he was eventually released from custody. [ 48 ] In cross-examination, the officer agreed that at no time did the defendant threaten him or appear to be suicidal or say that he would harm himself. He was, however, “very difficult” and “talking in circles”. The defendant seemed to be angry and argumentative throughout their dealings. EVIDENCE OF THE DEFENDANT [ 49 ] The defendant testified on the Charter application at his trial. He is 55 years old and born in Nigeria.

He came to Canada in 1997 and has become a Canadian citizen. He is married with three children. He works as a psychiatric nurse and is a full-time student. His wife also works, and his children attend university and high school. [ 50 ] On the evening in question he was with a family member coming back from a religious service. He recalled being in an accident and the police attending. He then was taken to the police station. The defendant was wearing pants at the time. However, the officer demanded that the string be removed from them. He explained that the string could not come off.

They went “back and forth” about this. Eventually, he “gave in” and gave the officer his pants as he could not get the string out. Prior to this, he told the officer that he did not want to take his pants off. It was cold, and he did not want to remove his pants. He felt, however, that he had no choice: the officer kept demanding that he remove his pants. He never got his pants back afterwards, even when he was taken to court for a bail hearing later in the morning.

It was only then that one of the workers at the correctional centre provided him with pants. [ 51 ] At no time had he urinated in his pants, contrary to what the booking room officer stated. He was wearing temple garments underneath his clothing. They were white in colour and were not to be worn in public. When asked how he felt being at the police station in his undergarments, he replied that he felt “exposed” and there was a “total lack of respect” for his being. It was “sort of a shock” to him.

He added that he did not ask for his pants back as the officers were “very harsh”, and he asked himself what he had done “so wrong” such that they had such a “lack of respect” for him. He felt he had no choice, they forced him to take his pants off. [ 52 ] The defendant stated that at no time did he ever try to physically harm any of the officers. Neither did he try to harm himself. He did not talk about the officers shooting him at the police station.

It was only when the officers kept asking him to take his pants off that he mentioned that if that is the only way then shoot me, meaning that is the only way to succumb to what they were demanding. He was aware that all of the officers were armed with guns. He was trying to explain to them that the string in his pants could not come off. [ 53 ] No one offered him a blanket in the breath room, although he did have one in his cell.

As for the significance of his clothing that he was wearing that day, he testified that they had been spiritually blessed by the bishop of his church, and they were meant to be worn for a cultural ceremony. He would not allow himself to be seen in public without his pants on. Only his wife and family were permitted to see him in his undergarments. When asked whether he told any of the officers about the significance of what he was wearing, he replied that no one wanted to hear what he wanted to say.

At no time did he wish to be in front of the police officers without wearing his pants. [ 54 ] In cross-examination, the defendant explained that his clothing had been blessed by his bishop and they were supposed to be worn only to cultural ceremonies. On this occasion, a child had been born, and this was the service he attended. He disagreed that his top went down to his knees, as when he was sitting his underwear was showing. When he was standing, the top of his knees were covered. There were garments or underwear under his pants.

The defendant explained the significance of his temple garments as being those that are worn all the time for religious ceremonies, including burial. They go to just above his knees. [ 55 ] There is an opening, explained the defendant, that allows him to “pee” when wearing his undergarments. No one would be able to see his “privates” otherwise. He agreed that the officer demanded that the string be removed from his pants, but he said that it could not come off. The two of them went “back and forth”. He eventually took his pants off because the officer told him to. He then gave them to the officer.

The defendant felt he had no choice but to remove his pants. He was surrounded by police officers and they demanded he take off his pants. This was a command to him. He did not remove them voluntarily. He was scared and had no choice, so he took them off. [ 56 ] The defendant was asked to explain how his garments were blessed. He stated that he had been baptized and there was a temple endowment over the course of a year. He then received a spiritual blessing which was to last for a lifetime. The blessing included his clothing, which he considered to be part of him.

When he was surrounded by five police officers at the police station, however, he felt he had no choice but to take his pants off. He was commanded to do so and could not fight back. In public or somewhere else they could not make him do this. He considered himself to be a “law abiding citizen” and did not want to undress. As a result, he felt “totally

embarrassed and shocked”, as he was in the presence of others, including females [ 57 ] With respect to the demand to provide breath samples at the police station, the defendant stated that he was sick and refused to comply. However, he did it before at the roadside where he felt he was more respected. The officers in the police station were in uniform and treated him “badly”. He was shocked with how they were towards him, and he became annoyed. This is why he refused to provide breath samples.

He was upset and degraded by their conduct. [ 58 ] The defendant’s pants and other property were returned to him at the correctional centre later that morning. Although he was never given a blanket at the police station, he agreed that he did not ask for one or anything else to cover himself. He was asked why if this clothing had such cultural significance to him he did not ask for anything to put on. He replied that there was no point in asking, given the confrontation over taking the string out. If they were “human enough” they should have provided him with something to cover himself.

He had no intention of harming himself with the draw string as he had already been handed a phone with a long chord at the station. [ 59 ] It was not out of frustration, he said, that he removed his pants. It was due to the police officer telling him to take them off. The defendant had been cooperative with the officers throughout their dealings, in his opinion. When he was asked then why he did not speak to a lawyer inside the privacy booth at first, he replied that he wanted the officers to hear that he was upset. There was no need to speak in privacy, for this purpose.

Eventually he did go inside the booth. [ 60 ] The defendant testified that he did not think there was any point to asking for his pants back. He did not trust the officers. He agreed, though, that he was given a drink of water when he said he was thirsty in the breath room. There was no point, in his mind, in asking for his pants and being uncomfortable in his underwear as he did not believe the officers would believe him. He agreed he never told them he was uncomfortable or cold, or expressed any concern over being videotaped. However, he denied urinating in his pants, saying that never happened.

It was not his custom to ever wear shorts or pants above the knees or short-sleeved shirts. [ 61 ] In re-examination, the defendant stated that it was more than one time that the officer tried to remove the draw string from his pants. He was also certain that the officers told him to remove his pants several times. POSITION OF THE PARTIES Defence Submissions [ 62 ] The defence called no evidence on the trial proper. Accordingly, it is the position of defence counsel that the Crown has established the requisite elements of the refusal offence, pending the resolution of the strip search issue.

However, relying on the Supreme Court of Canada’s decision on strip searches of accused persons in R v Golden , 2001 SCC 83 , it is submitted that the removal of the defendant’s pants at the police station so as to permit a visual inspection of his undergarments constitutes such a search, and it was not conducted in a reasonable manner.

The burden then shifts to the Crown to justify the reasonableness of the strip search of the defendant, which in the view of the defence it fails to do. [ 63 ] With respect to the circumstances surrounding the strip search in question, it is submitted that it constituted a serious infringement of the defendant’s rights under s.8 of the Charter against unreasonable search or seizure due to its prolonged nature, given that the defendant was left in his undergarments during the entire time he was at the police station. There were less drastic alternatives available.

The draw string could have been cut off, or his pants could have been left on while he was in the breath room and in the presence of the officers. He also could have been given a blanket for privacy and comfort. [ 64 ] The defence describes the breach of the defendant’s s.8 Charter rights as being profoundly intrusive. There were several officers in close proximity to the defendant in the small lodging or booking area, including a female officer. In addition, the clothing had cultural significance to the defendant.

Removing one’s clothing and leaving the person in that state, whether there is significance to the clothing or not, states defence counsel, subjects the person to a breach of Charter rights. [ 65 ] While there is no audio of the interactions between the defendant and the police, the defence submits it is clear on the camera that the defendant is ordered to remove his clothing, as evidenced by Constable DeLisi inspecting the draw string to the pants and trying unsuccessfully to unfasten it. There is obviously a disagreement between the police and the defendant at this time.

It is clear he is being resistant, and not compliant, at the time his pants are removed. Thereafter he is made to remain in the breath room the entire time without wearing any pants. No blanket was offered to him, or any other steps were taken to give him privacy, which is the responsibility of the police. [ 66 ] In short, leaving the defendant in his undergarments during the entire time he was at the police station, it is argued, including being administered a breath test, is inappropriate and unacceptable police conduct.

No consideration was given to providing him with a blanket from the cell, since he did not ask for one and he was not in the cells at the time. The inflexibility shown by the police towards the defendant, especially considering he was in the presence of multiple officers at all times, demonstrates the unreasonableness of the search and the reasons put forth for removing his pants. There was no evidence of his pants being soaked in urine, apart from the searching officer’s evidence, which was contradicted by the other officers.

Moreover, until this point, the defendant was cooperative, as evidenced by his agreeing to provide a breath sample at roadside, which he did without any difficulty or being confrontational or argumentative. [ 67 ] The lack of an audio recording of the conversation in the booking area between the defendant and Constable DeLisi is also troubling, in the defence’s view. None of the directions or responses by either of the parties with respect to the removal of the draw string and pants is recorded in the officer’s notes.

Neither is the defendant’s comments that he is alleged to have made about the other officers, such as racial slurs; the presence of urine in his pants is also absent in the notes. Indeed, the senior officer whom it is said authorized the manner of conducting the search was not called by the Crown. The brevity of the officer’s notes is exacerbated by the fact that there is no good reason to have audio and video recording in one room, but only video in an adjoining room, where the booking process undertaken by this officer takes place.

The failure to make a proper record, therefore, of the booking room procedure where the strip search occurs should result, it is submitted, in a negative finding being drawn against the Crown in its efforts to justify the

reasonableness of the search in question. [68] With respect to the remedy that should be granted as a result of the violation of the defendant’s rights under s.8 of the Charter, thedefence submits that it is open to the court to exclude the evidence of the defendant’s refusal to provide a breath sample under s.24(2) ofthe Charter or Rights, or alternatively to stay the proceedings pursuant to s.24(1).

In support of the former, it is stated that applying theSupreme Court of Canada’s decision in R v Grant, 2009 SCC 32, the very intrusive nature and duration of the strip search constitutedserious Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the accused was pronounced as itstruck at his personal rights and privacy as it related to his bodily integrity; and the long-term interests of the due administration ofjustice require exclusion of the evidence. [69] As for the application of s.24(1), relying on the Supreme Court of Canada’s ruling in R v Babos, 2014 SCC 16, it is submitted that astay of proceedings is appropriate and warranted as the state has engaged in conduct that is offensive to societal notions of fair play anddecency, and that proceeding with a trial in the face of such conduct would be harmful to the integrity of the justice system.

It isobserved in this regard that the law respecting strip searches has been settled for well over 15 years, yet the authorities subjected thedefendant to being deprived of his pants for a prolonged period in a police station, all the while videotaping the strip search, in what isessentially a routine drinking and driving case involving a person who has never been before the courts before.

There is no alternateremedy short of a stay of proceedings that will adequately dissociate the justice system from the impugned state conduct going forward.Thus, it is submitted, a stay of proceedings will better protect the integrity of the justice system than having the charge against thedefendant adjudicated on the merits.

Crown Submissions [70] It is the position of the Crown, on the other hand, that there has been no violation of the defendant’s right against unreasonablesearch or seizure, and that nothing in the evidence supports such an assertion, the burden of proof being on the defendant to establish thisCharter infringement on the balance of probabilities. To begin, she argues, there is no requirement that the defendant’s interactions withthe police at the time of his booking or lodging procedure be videotaped.

Thus, the failure of the authorities to produce an accompanyingaudio recording, along with the video recording, does not constitute lost evidence or a failure to preserve such evidence. [71] This portion of the evidence, submits the Crown, is adequately reproduced through the evidence of the officers who dealt with thedefendant, particularly Constable DeLisi. In addition, the defendant also gave evidence in this regard.

Accordingly, there is no basis tofind that there is a failure to record or otherwise preserve this aspect of the evidence respecting the defendant. [72] With respect to the alleged strip search of the defendant, it is the Crown’s position that no such search occurred as it was thedefendant himself who removed his pants, and he did so on his own initiative, not at the behest of the police. She notes in this regard thatit was the defendant who did not wish the draw string to be removed from his pants, which the authorities were justified in treating as asafety concern.

The shocked reaction of the police when the defendant discarded his pants supports their position, she argues, that theydid not instruct the defendant to remove them. As for the failure of Constable DeLisi to note this, it is submitted that the officer wasaware that this interaction was being videotaped, so there was no need to document it. [73] Crown counsel also points to inconsistencies in the defendant’s evidence in this regard.

Contrary to his assertion that he cooperatedwith the officers, the video shows that he refused to comply with basic orders such as entering the privacy booth to speak to the lawyerwho called him at his request to speak to duty counsel, or the manner in which he discarded his pants by tossing them away. Indeed,while he may have provided a breath sample at the roadside, he did not initially identify himself as the driver of the motor vehicle, andwas not generally responsive to the investigating officer, Constable Mogan.

His conduct then worsened at the police station, where hewas verbally aggressive and rude, constantly talking over the officers and doing the opposite of what he was told in the booking area andthe breath room. His confrontational attitude continued in the cells. Indeed, he chose to remain in custody rather than sign his releasepapers. [74] As for the defendant’s appearance, it is submitted by the Crown that what he was wearing looked like shorts and his long-sleevedtunic almost came down to his knees. In essence, the defendant was subjected to a frisk search, and not a strip search.

His undergarmentswere never removed; at no point could anyone see his underwear. The fact that the police did not mitigate or prevent the defendant’sactions in removing his pants does not mean that they acted improperly.

Indeed, there was a proper basis to conduct the search of thedefendant once he entered the police station due to safety concerns generally, and in particular to remove the draw string which couldpotentially be used to harm himself. [75] With respect to the issue of remedy, Crown counsel submits that in the event of a Charter violation being found, there is noautomatic rule of exclusion under s.24(2). Neither is a stay of proceedings the sole remedy pursuant to s.24(1).

Citing the decision of theOntario Court of Appeal in R v Flintoff (1998), (ON CA), 111 O.A.C. 305 in this regard, Crown counsel notes thatwhile the breathalyzer test results were excluded as a remedy for an improper strip search in this drinking and driving case, the impaireddriving charge was found to be severable as it was not sufficiently connected to the impugned police conduct.

By way of analogy, it issubmitted, the frisk search of the defendant in the booking or lodging area is unrelated to the defendant’s refusal to provide a breathsample to the Intoxilyzer operator, and should not therefore attract an exclusion of evidence or stay of proceedings as a Charter remedy. [76] Stated shortly, any breach of the defendant’s s.8 Charter rights had nothing to do with the investigation and the gathering ofevidence against the defendant. Accordingly, the conduct of the police in this case has no impact on trial fairness considerations. A stayof proceedings is therefore not an appropriate remedy.

Conversely, a sentence reduction might be warranted in the event of a finding of astate misconduct, as was discussed in R v Nasogaluak, 2010 SCC 6. [77] Neither is exclusion of evidence warranted, in the Crown’s opinion. The seriousness of the state misconduct is at the lower end ofthe spectrum, given that it was the defendant who was responsible for taking his pants off. While the impact of the violation was notinsignificant to the defendant since it involved his personal autonomy, it was nevertheless minimally invasive; the search itself wasconducted reasonably.

Finally, the importance and reliability of the evidence strongly supports the societal interest in having a trial onthe merits. The overall balancing of these competing considerations strongly supports, it is therefore argued, inclusion of the evidence

and not its exclusion. STRIP SEARCHES GENERALLY [ 78 ] In R v Golden , the Supreme Court of Canada made a number of important pronouncements regarding strip searches.

The majority commenced its judgment by noting that the constitutional right to privacy requires that “unjustified searches” by the state be prevented. (para. 23) Conversely, a search will be reasonable within the meaning of s.8 of the Charter of Rights and Freedoms where it is authorized by law, the law itself is reasonable, and the search is conducted in a reasonable manner. (para. 44). [ 79 ] The definition of a strip search that was accepted by the Supreme Court is as follows: “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.” (para. 47).

The Court went on to note that this definition distinguishes strip searches from less intrusive “frisk” or “pat-down” searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions. [ 80 ] The accused in Golden was subjected to three different strip searches in fact. The first took place in a stairwell where a police officer undid his pants, pulled back the long underwear the defendant was wearing and looked down the long underwear at his buttocks.

The second strip search occurred in the back of a restaurant at which point the defendant’s pants and underwear were pulled down to his knees while the officers tried to seize a package containing drugs that was between his buttocks.

There was a third strip search which was carried out at the police station. [ 81 ] After noting that strip-searching is one of the most intrusive manners of searching as well as one of the most extreme exercises of police power, the Court commented that such searches are “inherently humiliating and degrading” for detained persons regardless of the manner in which they are carried out. (para. 90) For this reason, they are not to be carried out simply as a matter of routine policy. [ 82 ] The Court went on to hold that the fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the “automatic authority” to carry out a strip search. (para. 98) In contrast to a “frisk” search, a strip search is a more intrusive search, and a higher degree of justification is therefore required to support the higher degree of interference with individual dignity and freedom.

Thus, in order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. [ 83 ] At para. 99 the Court added: In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest.

In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s.8 of the Charter . [ 84 ] Strip searches are generally to be conducted only at the police station, unless there are exigent circumstances that require the search to be done prior to transporting the detainee to the police station.

Where strip searches do take place, they are to be conducted “in a manner that interferes with the privacy and dignity of the person being searched as little as possible.” (para. 104) [ 85 ] In determining the issue as to whether a strip search has been carried out in a reasonable manner, the Supreme Court held that where the reasonableness of such a search is challenged, it is the Crown that bears the onus of proving its legality.

As a result, it must convince the court, on a balance of probabilities, that either reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search “in the field” was warranted and conducted in a reasonable manner; or that reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable manner. Having regard to strip searches being “of such an invasive character”, they are to be considered prima facie unreasonable.

Thus, it is up to the state to rebut this presumption since “it is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did”. (para. 105) This onus rests upon the Crown in any case involving a strip search. [ 86 ] The Court’s evaluation of the strip searches in the Golden case made clear that such searches are not to be viewed in isolation, but in the “complete context” of the events that took place following the person’s arrest.

Hence, while the first part of the strip search of the accused in the stairwell was of a less intrusive nature than the search that followed in the restaurant, it was held that the visual inspection of his buttocks, “in and of itself, interfered with his privacy, dignity and integrity.” (para. 106) The Crown’s burden of proof in regard to this first part of the search was thus the same as that required to justify the subsequent search that took place in the shop.

The more intrusive the search, though, there is a greater degree of justification required, and greater constraints as to the manner in which it is conducted. [ 87 ] By carrying out the strip search in public, rather than the nearby police station, the Court noted that there was an absence of appropriate safeguards in place. Thus, the police failed to meet a condition essential to the validity of such an intrusive and warrantless search.

There were no reasonable and probable grounds to believe that the strip search of the accused had to be conducted with such urgency. [ 88 ] Additionally, the manner in which the strip search was carried out in the restaurant was not in compliance with the requirements of reasonableness contained in s.8 of the Charter of Rights . It was noted that the defendant was not given the opportunity to remove his own clothing, which might well have reduced the sense of panic he clearly experienced. It was also conducted without notice to, or authorization from, a senior officer.

Instead, the decision to conduct the search was made unilaterally by the arresting officers. Indeed, it was carried out in a manner that might have jeopardized the defendant’s health and safety as the officers had no way of knowing whether the package was physically lodged inside his buttocks in such a way that it could be safely removed without medical intervention. [ 89 ] Lastly, the Supreme Court addressed the relevance of the defendant’s resistance to the strip search. The trial judge had taken into

account the fact that had the defendant relaxed and not attempted to retain the package, the search could have been much shorter and less intrusive. It was held that the trial judge erred in this regard. As the Court put it: We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engage in behavior that disregards or compromises his or her physical and psychological integrity and safety.

If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specific circumstances.

In this case, the appellant’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances. (para. 116) [ 90 ] In the result, it was found that the manner in which the strip search was conducted in this case was unreasonable. It therefore amounted to a breach of the defendant’s rights under s.8 of the Charter .

The issue of remedy, however, was not addressed as the defendant had served his sentence in full and there had been no s.24(2) analysis in the courts below. An acquittal was therefore imposed on appeal. STRIP SEARCHES AND IMPAIRED DRIVING CASES [ 91 ] While Golden was a case involving strip searches in the context of drug trafficking, a number of drinking and driving cases have also discussed strip searches. One such case is R v Flintoff , a decision of the Ontario Court of Appeal pre-dating Golden , which the Crown cites in its submissions as to remedy.

The Supreme Court, in fact, referred to the Flintoff case, in its judgment. [ 92 ] The facts in Flintoff involved the arrest of an accused for impaired driving. At the police station he was subjected to a strip search as a matter of routine policy. There had been a brief pat-down search at roadside beforehand. However, after being transported in a cruiser and taken to the booking area in the police station, he was escorted into a nearby room with a shower stall. At that time, his clothing was either removed or lowered such that the officer could view him in his underwear.

There was agreement in the evidence that there was no physical contact between the officer and the accused during the strip search. No items or evidence was found on him. The accused also testified that while the strip search was being conducted, the door to the room was left wide open, and he observed three police officers in the outer office, one of whom was female. He was not told the reason for the strip search.

It made him feel “embarrassed and degraded.” (para. 9) [ 93 ] It was held that the strip search conducted in the circumstances of this case constituted “a flagrant violation of the Charter and an abuse of police power”. (para. 22). The Court went on to comment: The public places a great deal of power into the hands of its police forces to meet the heavy responsibility police forces take upon themselves everyday in protecting our safety and security. The public also places a corresponding amount of trust in its police forces to wield this power in accordance with common sense and in compliance with our laws.

The strip search conducted in this case is not justified in law. It was not incidental to arrest. The strip search was an unreasonable search and accordingly was a violation of the appellant’s s.8 Charter right “to be secure against unreasonable search or seizure”. The strip search was also a violation of the public’s trust in its police forces and at odds with common decency. (para. 23) [ 94 ] The Court went on to state that it agreed with the lower court’s characterization of the breach of the defendant’s rights as being outrageous and flagrant. It was also one that would shock the public.

Strip-searching, it noted, is “one of the most intrusive manners of searching and also one of the most extreme exercises of police power.” (para. 24) [ 95 ] In view of the finding that the “unreasonable and offensive strip search” of the defendant violated his s.8 Charter rights, the remaining issue for consideration was what remedy, if any, should be granted in the circumstances. It was stated, in this regard, that the usual remedy for an unreasonable search in violation of s.8 of the Charter of Rights is to exclude under s.24(2) the evidence that is the product of the unconstitutional search.

The Court proceeded to apply the (pre- Grant ) exclusion of evidence test, and concluded that the admission of the breathalyzer results in the proceedings would bring the administration of justice into disrepute, and the evidence should therefore be excluded. [ 96 ] As noted earlier, however, when reviewing the Crown’s position as to remedy, the Court of Appeal declined to stay the charge of impaired driving.

It considered that the conduct of the investigating officer at the scene of the accident could not be criticized; the evidence to support this charge was “entirely severable” from what took place at the police station. Thus, there was no reason why the offence “for which there can be no due process complaint” should not proceed on the basis of other evidence available to the Crown. (para. 42) [ 97 ] Post Flintoff and Golden , a number of strip search cases in Ontario have arisen in the drinking and driving context.

Most of these are trial decisions in the Ontario Court of Justice. [ 98 ] One of the few cases in the Superior Court of Justice is R v Lee , 2013 ONSC 637 . It is cited in most of the trial decisions in the Ontario Court of Justice, referred to below. In this instance, Justice Fuerst ordered a new trial after the accused had been convicted of impaired driving. Following her arrest, she was taken to the police station for breath testing where a routine pat down search detected the presence of an underwire bra. Acting in accordance with policy, the police requested its removal.

The accused complied and took off her top to remove her bra; in so doing her breasts were briefly exposed to a female officer.

It was held that the trial judge erred in finding that the search did not constitute a strip search, and in failing to consider whether the search was necessary in the circumstances. [ 99 ] Applying the Supreme Court’s decision in Golden , Fuerst J. noted the Court’s definition of a strip search is two pronged: “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 .. or undergarments .” [Emphasis added.] (para. 37) In the instant case, the officer directed the accused to remove her bra so that the police could visually inspect that undergarment, and then store it.

The officer’s direction that the accused remove her bra thus “fell squarely” within the definition of a strip search.

[ 100 ] The Court also rejected the analogy advanced by the Crown that there is no difference between two rigid pieces of metal wire whether in the arrestee’s pocket or in her bra. It was acknowledged in evidence by the officer that the wiring in an underwire bra is sewn into the bra itself, and that in order to remove it, a woman would have to unstitch the bra.

Hence, “wearing an underwire bra is not tantamount to carrying two wires loose in a pocket, where they are immediately accessible to the wearer”. (para. 45) [ 101 ] Finally, Justice Fuerst observed that the trial judge had not considered 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.” (para.46) [ 102 ] As a new trial was ordered, the Court did not address the issue of remedy under s.24(1) of the Charter of Rights .

However, it was noted that “conduct by the police violative of Charter rights that is systemic in nature may be a relevant consideration on a section 24(1) application.” (para. 47). [ 103 ] The Lee case was considered by Block J. in R v Robb , 2014 ONCJ 514 . In this drinking and driving case, the accused was likewise directed to remove her underwire bra by a female officer. She had previously been subject to a pat down search in a small room that had no window or video surveillance; the door was also closed. The accused removed her bra from under her shirt and handed it to the officer.

The latter did not touch or see her breasts during their contact. [ 104 ] Applying Lee , the Court held that as there was no suggestion the search in question was based on reasonable and probable grounds, the removal and inspection of the accused’s bra was in violation of her s.8 Charter right to be free from unreasonable search or seizure. [ 105 ] With respect to the appropriate remedy that should follow, Justice Block went on to hold that the breach of the accused’s rights did not meet the test for a stay of proceedings.

It was observed that that the “police error had no trace of cynical or willfully wrong behavior” and it had subsequently been addressed by a change of policy. (para. 17) Rather than excluding the breath tests, the Court indicated that it would address the defendant’s remedy “by way of sentence adjustment.” (para. 18) [ 106 ] Another case considering Lee is R v Korzh , 2015 ONCJ 738 . Following her arrest for impaired driving, the female defendant was taken to the police station. There she was subjected to a “more fulsome search” by a female police officer. This took place in a small room off the booking area.

The door to the room had a small window; the area outside the room was video but not audio monitored. [ 107 ] There was a conflict in the evidence as to the nature of the search that followed. The accused stated that she was required to remove her blouse and bra. She also said she was asked to lift her breasts. According to the officer, no clothing was removed in the search, and she conducted a pat down search over her clothing only, including around the breast area. During the course of this search, a male officer looked through the window in to the room on three occasions.

Eventually, the officer entered the room with other male officers, and the defendant was led out in handcuffs. [ 108 ] Justice Duncan found that the defendant was subjected to “a search of some sort without warrant.” (para. 10) He went on to hold that the Crown had met, although just barely, its onus of showing that the search was carried out in a reasonable manner. It was his conclusion that the searching officer’s evidence that there was no removal of clothing was more probable than the defendant’s version of events.

He also noted that no strip search had been authorized by the officer in charge and there was no reason why the searching officer would take it upon herself to do such a search. As a result, it was held that no strip search occurred. [ 109 ] On appeal, a stay of proceedings was imposed in accordance with s.11(

b) of the Charter of Rights due to a finding that there had been unreasonable delay in the length of time the matter took to proceed to trial: see R v Korzh , 2016 ONSC 4745 . Miller J. commented, though, at para. 31, that the trial judge’s finding that no strip search took place was unassailable. [ 110 ] In R v D’Andrade , 2016 ONCJ 68 , a female accused was stopped by two male police officers who investigated her for impaired driving. A roadside screening device was brought to the scene by a female officer. When the accused blew a fail, she was arrested and given a pat down search by the female officer.

During the course of this search, the officer unzipped the accused’s sweater without warning. The accused was wearing a see-through bra which exposed her breasts. The accused claimed that the male officers were standing nearby and could see everything; the male officers denied that they had observed anything. [ 111 ] Justice Bovard, applying the Lee decision, held that the defendant was subjected to an improper strip search. He noted that whatever articles of clothing the defendant might have been wearing under her sweater, they were not for “public eyes”.

Thus, when the female officer unzipped her sweater and exposed her breasts, she had performed a strip search. A simple pat down search would have sufficed, given that a strip search was not necessary to ensure that the accused was not concealing any weapons or other things that might pose a danger. The accused had no criminal record. There was no evidence that she had ever been in contact with the police or that she was dangerous in any way. [ 112 ] As a result of the Charter s.8 violation, the Court excluded the breath test results.

In arriving at this conclusion, Bovard J. commented at para. 93: I classify “the Charter -infringing state conduct” as very serious. It was an unnecessary strip search on the roadside of a female that exposed her breast while two other officers looked on. It is unquestionable that these types of searches “represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them”. [ Golden , para. 83] I do not find that Officer McClinchey’s assumption that Ms.

D’Andrade was wearing a shirt under her sweater mitigates the seriousness of the breach significantly. She should have checked her assumption with Ms. D’Andrade before unzipping her sweater. That would not have been hard to do. She was careless in this regard. [ 113 ] A stay of proceedings was granted in R v Dunwell , 2016 ONCJ 133 where an accused who was arrested for drinking and driving offences was told to take off her jumpsuit while she was in a cell and was told to wait in her underwear while a coverall was brought to her. She was not wearing a bra, and her breasts and back were exposed.

The officer explained that such a search was necessary in order for her belly ring to be removed. Bourque J. ruled this strip search was humiliating, degrading and unreasonable, and thus in violation of the defendant’s rights under s.8 of the Charter .

[ 114 ] Turning to Lee , the Court observed that there was no real evidence as to why it was necessary to take the “belly ring” from the defendant. As the officers described it, virtually all items of personal clothing could potentially constitute a weapon of sorts. Even if the removal of such an object might be justifiable, there was no “reliable evidence” upon which to base a finding that it was necessary to go to the extent of making the defendant expose her breasts in furtherance of this goal.

The Court noted that it was hard to see how a ring could be of real danger to a person sitting in a cell for a few hours, by themselves, and under constant video surveillance.

Thus, similar to the policy referred to in Lee to remove an underwire bra, the policy in the instant case applied “without exception” to any female detainee with jewellery on her body, and so constituted a basis for routine strip searches of female detainees in contravention of s.8 of the Charter of Rights . [ 115 ] With respect to remedy, the Court concluded that this was one of the clearest of cases calling for a stay of proceedings, rather than any lesser remedy such as a sentence reduction.

Bourque J. stated in this regard: I am concerned that police forces put vague concepts of police safety before the human dignity of people they have in detention. While police safety can clearly (in the appropriate case) trump the dignity of a detainee, I do not see how that was the case here. I am concerned that there was no thought given to this. If the removal of the belly ring was that important, surely the defendant could have been allowed to do it in privacy of that room, or a washroom.

I also note that if she had been allowed to keep her jacket, she could have lowered her top without exposing herself. (para. 48) [ 116 ] A stay of proceedings was also fashioned as a remedy in R v Im , 2016 ONCJ 383 , a case where an accused who was arrested for impaired driving was made to remove his pants, exposing his undergarments. This strip search was held to be a significant violation of the defendant’s s.8 Charter rights.

The seriousness of the violation was compounded by the fact that the police officer who conducted the search did so without authorization by a supervisory officer; the breach was made more serious by the failure of the officers to keep a proper record of the search. The Court also found that there were significant ongoing systemic issues at the police division in question regarding strip searches: the searching officer had conducted more than 100 such searches, and senior officers had taught him to follow that procedure.

No senior officer had taken any steps to stop the search in question. [ 117 ] Justice McArthur observed that it had been almost 15 years since the Supreme Court of Canada in Golden defined a strip search as including a situation where the removal of clothing leaves the person’s undergarments exposed. The Toronto Police Services Policy and Procedure manual was to the same effect.

Accordingly, the law was clear, and there should be no uncertainty or confusion as to the nature of the officer’s conduct constituting a strip search. [ 118 ] In finding that there was no alternative remedy than a stay of proceedings, Justice McArthur observed at para. 34: In my view, a proper balancing of the interests leads to the conclusion that this is one of the exceptional cases where a stay of proceedings is warranted. To move forward in the face of the police misconduct in this case would be harmful to the integrity of the justice system and would amount to judicial condonation of the impugned conduct.

A stay of proceedings is essential to denounce the police misconduct in Mr. Im’s case and to deter the police from continuing to act in flagrant disregard of the prevailing law and their own policy regarding strip searches. [ 119 ] More recently, in R v Judson , 2017 ONCJ 439 , the accused was arrested for drinking and driving offences after failing the roadside breath test. She was brought to the police station. While there, after being given a more thorough secondary pat down search, she was asked to remove her bra, before being placed in a holding cell.

While in the breath room, the accused used a blanket which she had been given to try to keep her breasts covered up. It was conceded by the Crown that the defendant had been subjected to an illegal strip search, but argued that no stay of proceedings or exclusion of the breath test evidence should be granted as a remedy for the breach of the defendant’s Charter rights. [ 120 ] Deluzio J. applied the Lee decision and found that the removal of a female inmate’s bra constituted a strip search.

The Court accepted the defendant’s evidence that she felt humiliated and embarrassed throughout her detention and the trial process directly as a result of the illegal strip search, the latter which involved, by necessity, the viewing and analysis of the video evidence and the defendant’s testimony. It was also clear from the evidence that the illegal strip search of the defendant was not an isolated incident.

The removal of underwire bras, if not any type of bra, of all female detainees, was a routine procedure at the OPP detachment in question. [ 121 ] The Court proceeded to fashion a stay of proceedings under s.24(1) of the Charter of Rights as the only appropriate remedy. Justice Deluzio stated as follows: The indifference expressed by both Officers McFadden and Allaire to their obligation as police officers to abide by the legal constraints surrounding strip searches is very concerning.

And the apparent willingness of both officers, and possibly other police officers at Quinte West OPP detachment, to continue with a practice of removing at least every underwire bra worn by female detainees, knowing that this practice, when implemented automatically and without exception towards every female detainee, is illegal, is an egregious use of police power.

I also find that there is no alternative remedy, such as a sentence reduction, that will suffice, given the narrow range of penalties available to the Court when upon conviction the Court must impose a mandatory minimum fine and a mandatory one year driving prohibition. It is possible given the elevated readings, that the Crown could have sought a fine higher than the mandatory minimum fine, but even if that were the case, the remedy available to the Court would be a fine reduction of only several hundred dollars, which would be inadequate to address the harm done to Ms.

Judson and the integrity of the justice system in this case. (paras. 40-41) [ 122 ] In conclusion, it was held that the prejudice caused by the breach of the defendant’s rights under s.8 of the Charter would be “manifested, perpetuated and aggravated” if her trial continued, and that proceeding to a final adjudication on the merits of the case would cause “irreparable prejudice to the integrity of the justice system.” (para. 42) The Court added that had the s.24(1) application not been before it, exclusion of the breath tests would have been granted as a remedy under s.24(2), given that the illegal strip search occurred before the breath tests were taken, and it was clear from the evidence, including the video evidence, that the defendant continued to experience humiliation and embarrassment throughout the breath test procedure.

APPLICATION OF LAW TO FACTS OF CASE [ 123 ] As the cases above demonstrate, strip searches have taken place in drinking and driving investigations at the roadside, the police station upon arrival, and waiting in the cells for the breath test procedure to commence or continue.

What then of the situation in this case, involving the search of the defendant upon his arrival at the OPP detachment where his pants were removed after the draw string attached to them could not be taken off, and he remained in this state of undress during the entirety of the process that followed. [ 124 ] The defendant had first been arrested by a female police officer, Constable Mogan, and transported by her alone to the detachment.

Although hesitant to respond to her initial queries at the roadside, he did provide a breath sample into the roadside screening device when asked to do so and was taken into custody without incident thereafter.

That said, it was certainly appropriate for a male officer, Constable DeLisi, to take over the arrest and processing of the accused when he arrived at the detachment, including performing a more thorough pat down search of a male prisoner who had been apprehended by a female officer. [ 125 ] I appreciate that at this particular OPP detachment there is no formalized booking area, nor dedicated officer to oversee the lodging process and procedure.

This resulted in Constable DeLisi making and authorizing the decision, without the guidance or approval of an experienced officer uninvolved in the case, as to how the detainee should be searched, and on what grounds to believe this was necessary.

Police officers, as Bourque J. stated in Dunwell , at para. 48 , should not “put vague concepts of police safety before the human dignity of people they have in detention.” In this case, however, it does not appear that any alternatives were considered to removing the draw string from the defendant’s pants or determining exactly upon what basis it would pose a danger, given that it was sewn into his clothing, while the defendant was in the company of other officers during the breath testing procedure.

Certainly, there appeared to be no safety issues or mental health concerns when dealing with the defendant until this point of time. He had no previous police involvement. Indeed, the arresting officer who had interacted with the defendant on her own had no such concerns. If there was some other senior officer at the detachment who approved of the manner of DeLisi’s search of the defendant, as the officer claims, this officer was not called to testify by the Crown in support of the impugned warrantless search. In fact, the supervising officer at the detachment, Sgt.

Winniarski, appeared to have no involvement in the matter until after the breath testing procedure, when

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