R. v. Caslake, 2016 MBPC 66

Cite # 2016 MBPC 66 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Ken Hawkins, for the Crown ) - and - ) ) Lionel John Flett, Accused ) Kristopher Advent, for the Accused ) ) Judgment delivered: ) November 28, 2016 CORRIN, P.J. [ 1 ] The accused had been released from jail on July 6, 2015. After such release, a warrant issued for the accused’s arrest for breach of a Probation Order. Within three weeks after his release the accused turned himself in to police respecting the warrant.

He was arrested pursuant to the warrant. [ 2 ] The Arrest Processing Unit of the Winnipeg Police Service (WPS) notified Mr. Claude Bernardin, a WRC Preventative Security Officer at the WRC that they would be bringing Mr. Flett to the WRC. They notified him Flett had turned himself in. Bernardin was suspicious about Flett having turned himself in and drew certain inferences based on his known affiliation with the Indian Posse (IP) gang who according to him were known to deal drugs within the WRC.

Bernardin related his suspicions to his superior, Chief Correctional Officer Christine Reimer, suggesting that she consider exercising her authority to place Flett in a dry cell to determine if he was bringing drugs into the WRC within his person. Officer Reimer told Court that drug smuggling is a significant problem at the WRC as same leads to staff and inmate risks associated with inmates being under the influence. [ 3 ] Officer Reimer made a decision to dry cell Flett.

The basis for this, she testified, was his documented I.P. affiliation, his short out-of-custody liberty period, the fact that he voluntarily turned himself in to police, which she believes is positively correlated with institutional drug importation and finally, a conviction for drug trafficking from 2009. She acknowledged that she had no specific intelligence or informant information actually suggestive of Flett being a drug trafficker in relation to this matter. There is, however, little question that nonetheless she really subjectively suspected that Mr. Flett was a potential drug smuggler.

She certainly had a hunch or a suspicion that he was up to no good. [ 4 ] Defence argued, and I concur, that an objective analysis of the situation wouldn’t give rise to a conclusion that Ms. Reimer had reasonable grounds to believe that the accused was secreting drugs within his person into the WRC. [ 5 ] On Reimer’s direction, the accused was strip searched upon his arrival at the WRC, then when nothing was found, told by officers that he was going to be placed in a dry cell – a cell that has a special toilet that an inmate can’t personally flush. When Mr.

Flett was advised that he was going to be placed into a dry cell and how that would work, he informed staff that he had drugs concealed in his rectum. The drugs were then retrieved by him, not staff, and turned over to the WRC officers. [ 6 ] The accused argues that the search was unauthorized by law under s. 8. The application of s. 8 was explained in R. v. Caslake (1998) 18 C.R. 51 at paragraph 12: In order to be reasonable, searches and seizures must be authorized by law.

The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someone's property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. There are three ways in which a search can fail to meet this requirement. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search . If they cannot do so, the search cannot be said to be authorized by law.

Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C., 1985, c. C-46 , authorizes searches, but only with a warrant issued by a justice on the basis of a sworn information setting out reasonable and probable grounds. A failure to meet one of these requirements will result in a search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search.

To the extent that a search exceeds these limits, it is not authorized by law. (italics added) [ 7 ] Section 35(2) of the Correctional Services Regulations allows dry cell usage. The provision is as follows:

A facility head or a correctional officer in charge of a custodial facility who believes on reasonable grounds that an inmate has ingestedcontraband or is carrying contraband in a body cavity may impose the temporary restriction of the inmate under supervision and in amanner that limits the inmate’s ability to hide or dispose of contraband or bodily wastes that may contain contraband, on the expectationthat the contraband will be expelled. (italics added) [8] The accused asserts that the dry cell search “threat” was carried out without reasonable grounds, that Officer Reimer’sdecision was based on a suspicion not empirical data.

The Crown accepts that the test for reasonable grounds is the same as grounds forarrest. He concedes that the wording and context certainly suggest that no different meaning was intended by the legislature. The Crownalso concedes that the burden rests on the prosecution to show on a balance of probabilities that s. 8 of the Charter was complied with. [9] Counsel agreed that the

section 8 Charter issue would be dealt with on a blended basis and that the voir dire evidence relatedwould be applied mutatis mutandis in the cause. [10] The Crown also called Correctional Officer Thomas Gatchel with respect to the dry cell procedure. Gatchel told Court that hehad explained the procedure and rules respecting same to the accused before he volunteered the drugs to himself and other attendingofficers. Defence didn’t cross-examine him respecting any concerns or questions uttered by Flett at such time. Mr. Flett didn’t testifywith respect to the voir dire.

As such the Court really has no idea why he volunteered the drugs to the officers. One assumes that he didso because he knew that dry cell internment would make their detection virtually a certainty. [11] The Court is of the view that Officer Reimer understood her obligation to have reasonable and probable grounds of belief andpersonally felt that she had same at the time she made her dry cell decision. However, the Court does not concur, and agrees with defencethat she lacked such sufficient grounds and actually acted somewhat arbitrarily without any objectively premised grounds for such asearch.

However, that being said, I do not perceive that such a Charter violation actually led to the discovery of the drugs, as no such“search” was actually conducted. After all, the accused volunteered the surrender of the drugs before the dry cell procedure was actuallyimplemented. As well, defence relied only on cases suggesting that strip searches were humiliating and personally violating and invasiveexperiences.

Since there was absolutely no evidence before the Court that the accused personally believed dry cell confinement to be ofsuch a nature I conclude that there was no evidence that he felt or was threatened in relation to an unreasonable search. I therefore findno breach of his Charter rights.

Section 24 Analysis [12] The Court, although it has found that the infringement was not causally connected to the discovery of the drugs, chooses toconduct a

section 24 analysis in the event that its decision may be incorrect and a

section 8 breach actually did occur. [13] Section 24(2) of the Charter states: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice in disrepute. [14] In R. v.

Grant, 2009 SCC 32, the Supreme Court of Canada set out the test to be applied when a court is considering anapplication to exclude evidence as a result of a Charter breach. The Court stated that the Court must take a “long-term forwarding-looking and societal perspective” when considering whether the admission of the evidence would bring the administration of justice intodisrepute.

As stated by the Court at paragraph 71: … When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter – infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter – protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication ofthe case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether, considering all the circumstance, admission of the evidence would bring the administration of justice intodisrepute… [15] In R. v. Côté, 2011 SCC 46 , 2011 SCC 46, the Court considered the three part test it developed in Grant andsummarized it in the following manner: The first line of inquiry involves an evaluation of the seriousness of the state conduct.

The more serious the state conduct constituting theCharter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct… The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protected interests of theaccused. The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation. Themore serious the impact on the accused’s constitutional rights, the more the admission of the evidence is likely to bring theadministration of justice into disrepute…

The third line of inquiry is concerned with society’s interest in an adjudication on the merits. It asks whether the truth-seeking functionof the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and itsimportance to the prosecution’s case are key factors. Admitting unreliable evidence will not serve the accused’s fair trial interests nor thepublic’s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of thejustice system and render the trial unfair from the public’s perspective.

The importance of the evidence to the Crown’s case is corollaryto the inquiry into reliability. Admitting evidence of questionable reliability is more likely to bring the administration of justice intodisrepute where it forms the whole of the prosecution’s case but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’s case. [16] At paragraph 84 of Grant also, part way through the paragraph, the majority states the following principle: ...

As pointed out in Birmingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individualstands accused” (para. 51). And as Lamer, J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, sothe enforcement of the Charter must not be left to that majority” (p.282). The short-term public clamour for a conviction in a particularcase must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has aheightened interest in seeing a determination on the merits where the offence charged is serious; it also has a vital interest in having ajustice system that is above reproach, particularly where the penal stakes for the accused are high. [17] There should be causal connection between the gathering of the evidence and the Charter infringement in order to exclude theevidence (R. v. Petit, 2003 BCCA 522 ; R. v. Luu, 2006 BCCA 73 ). The strength of the connections is a question offact in each case (R. v. Goldhart, (SCC), [1996] 2 SCR. 463, 107 CCC (3d) 481 at para. 40).

The seriousness of the Charter- infringing state conduct [18] Exclusion is favoured where admission of the impugned evidence may send the message the justice system condones seriousstate misconduct. [19] Doherty J.A. stated in R. v.

Clayton (ONCA), 194 CCC (3d) 289 (ONCA) at paras. 94-95, that the failure ofthe judiciary to disassociate itself from institutional indifference to constitutional rights will have long-term negative consequences forthe proper administration of justice, and that courts should exclude evidence obtained by constitutional violations that reflect suchinstitutional shortcomings. [20] The first step of the section 24(2) analysis involves placing the breach of the Charter which occurred along a “continuum ofmisconduct” (R. v. Blake, 2010 ONCA 1 , [2010] OJ No 48 (ONCA)).

The “more severe or deliberate the conduct involved thegreater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct”. A flagrantdisregard for the Charter by the police or other Justice System authorities (see R. v. Harrison, 2009 SCC 34 ) will be seen asbeing very different than a breach in which the police or other state authorities believed they were acting in accordance with the law (seeR. v. Beaulieu, 2010 SCC 7 , [2010] 1 SCR 248 and R. v. Loewen, 2011 SCC 21 , [2011] SCJ No 100).

The Court mustlook “both at what the police did and their attitude when they did it” (see R. v. Ramage, 2010 ONCA 488 , 2010 ONCA 488, atparagraph 48). [21] There is no evidence that the accused suffered an invasive procedure in relation to an infringement of his Charter protectedrights. There was no body cavity search or medication procedures such as the administration of emetics and no forcible seizure of bodilyfluids. There was no actual application of force against his will as the accused surrendered the drugs voluntarily before being placed onthe dry cell procedure.

It is the Court’s opinion that the seriousness of the infringing state conduct, if such had occurred, would thereforebe at the lower end of the spectrum and this factor would favour admission of the evidence. [22] In R. v.

Collins (1987) (SCC), 1 SCR 265, Lamer, J. (as he then was) stated the circumstances to be consideredwhen one is determining an application to exclude unlawfully obtained evidence: In determining whether the admission of evidence would bring the administration of justice into disrepute, the judge is directed by s.24(2) to consider “all the circumstances”. … The factors that the courts have most frequently considered include: - what kind of evidence was obtained? - what Charter right was infringed? - was the Charter violation serious or was it of a merely technical nature? - was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith? - did it occur in circumstances of urgency or necessity? - were there other investigatory techniques available? - would the evidence have been obtained in any event?

- is the offence serious? - is the evidence essential to substantiate the charge? - are other remedies available? (at pp. 283-284) [23] Lamer J. went on to distinguish between two broad categories of evidence unlawfully obtained, conscriptive and non-conscriptive. The former, including statements obtained without Charter compliance, should, he said, generally be excluded as they go tothe very fairness of the trial.

Non-conscriptive evidence, on the other hand, should only be excluded where, on balancing the factors, theCourt was satisfied that the admission of the evidence would bring the administration of justice into disrepute. [24] In the case at bar, the fruit of the unlawful search is non-conscriptive evidence. The relevant factors must therefore beconsidered and balanced. The evidence was real evidence not a conscripted statement. The investigative technique employed wasminimally invasive. There was no indication that the authorities could have recourse to other, less invasive investigatory techniques.

Theoffence is serious and the evidence essential to substantiate the charge. Moreover, the risk to other inmates and corrections staff inrelation to such an offence was very high as was related by the Crown witnesses at trial. This situation speaks to the question ofnecessity. If the accused had not been informed that he was being dry celled there is little likelihood that he would have surrendered therelatively large cache of potentially dangerous drugs that he had secreted within his body.

And of course, can there be any doubt that theaccused’s own safety would have been at risk if the condom container had sprung a leak while inside his system? In my view, for thesesafety reasons, the dry cell procedure cannot be characterized as being less than a good faith breach. The simple reality is that such asearch procedure could well save the life of a fellow inmate, a corrections officer or the subject inmate. These factors do not favour theexclusion of the evidence.

The impact of the breach on the Charter – protected privacy interests of the accused [25] Exclusion of evidence is favoured when admission of the impugned evidence may send the message to the public thatindividual rights count for little. [26] The second step involves a consideration of the “seriousness of the impact of the Charter breach on the Charter-protectedinterests of the accused” (Grant). This requires an evaluation of the degree to which the Charter violation impacted on the interestssought to be protected by the Charter.

The intrusiveness of the breach which occurred is of particular importance in this step of theanalysis (see R. v. Morelli, (2010) 2010 SCC 8 , 1 SCR 253). [27] In this case the Charter protected interest of the accused was his right to privacy. I agree with the Crown that it is important thatthe Court consider the context of the accused’s expectation of privacy. The Manitoba Court of Appeal in R. v. Vandenbosch (2007)MBCA 113 stated as follows at para. 32: It is well recognized that there is a real need to ensure that individuals who are entering a prison environment do not bring with themweapons or drugs.

The courts have recognized this legitimate purpose by acknowledging that in a prison environment there is a reducedexpectation of privacy when it comes to searches. Individuals do not expect to be able to enter a prison free from scrutiny. [28] The Supreme Court also commented in R. v. Monney (1999) (SCC), 1 SCR 652 on the nature of privacy in thecontext of a bedpan vigil, a term that is essentially the same as using a dry cell.

The Court stated that … the determination of this appeal revolves around the central question of whether a “bedpan vigil” can be properly characterized as an“invasive” procedure on a par with body searches involving the intentional application of force. In my opinion, it cannot. There is nodoubt that Canadians expect treatment that recognizes a strong sense of modesty concerning bodily functions. A traveller who is detainedin a “drug loo facility” and compelled to produce either a urine or a bowel movement under supervision is subject to an embarrassingprocess.

In my view, however, a passive “bedpan vigil” is not as invasive as a body cavity search or medication procedures such as theadministration of emetics. In this sense, the right to bodily integrity is not to be confused with feelings of modesty, notwithstanding theirlegitimacy.

Accordingly, a passive “bedpan vigil” is more appropriately analogous to a category two strip search on the basis that asuspect is detained and placed in an embarrassing situation, but is not subjected to an intentional application of force against his or herwill. (see para. 47) [29] The evidence collected from a dry cell is also not to be equated to seizing bodily evidence from an accused, such as DNA orblood samples. Again, in R. v. Monney, the Supreme Court wrote: Heroin pellets contained in expelled faecal matter cannot be considered as an “outward manifestation” of the respondent’s identity.

Anindividual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily waste andwhich is expelled from the body in the process of allowing nature to take its course. [30] As a prisoner in the WRC, the accused therefore had a significantly reduced expectation of privacy. Evidence was received thatsuch an inmate would expect to be strip searched. While the dry cell would certainly be unpleasant for most people, the Supreme Courtviews it in the same category as a category two strip search. It was therefore something within the realm of the accused’s limited

expectation of privacy. This factor does not favour the exclusion of evidence. Society’s interest in the adjudication of the case on its merits [ 31 ] Lastly, this is a case where society’s interest in adjudication on the merits of the case is high. The charges before the Court are very serious. Possessing

schedule 1 drugs in the community carries a maximum sentence of life in prison. In this case it is highly aggravating that the Court is looking at a case of institutional trafficking. The Court received what appeared to be reliable testimony that inmate populations are particularly vulnerable to illegal drugs. Drug addiction is what leads many people into the WRC, and providing a black market for these drugs destabilizes the institution and increases the risk of harm to all those within WRC walls. As well, the evidence seized was non-bodily physical evidence that is highly reliable.

Without the evidence, the Crown’s case would collapse. The suppression of reliable and essential evidence is contrary to societal truth seeking interests as well as society’s interest in having criminal allegations adjudicated on their merits. These factors also strongly favour admission of the evidence. [ 32 ] Having considered all the foregoing factors I have therefore decided not to exclude the drug evidence. “Original signed by” CORRIN, P.J.