R. v. Adams, 2019 ONCJ 847

ONTARIO COURT OF JUSTICE CITATION: R. v. Adams , 2019 ONCJ 847 DATE: November 20, 2019 BETWEEN: HER MAJESTY THE QUEEN — AND — SAMANTHA ADAMS Before Justice B. Green Heard on September 30 th , October 4 th , October 22 nd and 23 rd Reasons for Charter ruling released on November 20 th Mr. G. Black counsel for the Crown Ms. D. Condo for the Defendant Green J.: A. Introduction [ 1 ] Ms. Adams is charged with three counts of possession for the purpose of trafficking.

Following an arrest for a firearms offence, she surrendered a variety of drugs that were secreted on her person to a cell Sergeant while she was being paraded at the police station. [ 2 ] The trial proceeded by way of a blended voir dire and the crown called its entire case. Counsel indicated that she did not have any witnesses to call for the issues to be determined on the voir dire and the crown closed its case.

Counsel is seeking a ruling on the voir dire before continuing with the trial proper. [ 3 ] Counsel submitted that, as a result of a cumulative series of Charter violations, the evidence of the statements that Ms. Adams made during the parade process as well as the drugs that she surrendered in response to questions that she was asked by the cell Sergeant should be excluded from the trial. Counsel argued that: i. The police did not have reasonable grounds to arrest Ms. Adams and violated her rights as protected by sections 8 and 9 of the Charter ; ii.

The police ignored their professional and constitutional obligations to implement Ms. Adams’ rights to counsel without delay thereby flagrantly breaching her

section 10(

b) Charter protected rights; iii. The police strip searched a visibly upset 19-year detainee without reasonable grounds. The manner of arrest and subsequent detention was an unjustified and unconstitutional violation of her Charter protected rights; and iv. The state misconduct was very serious. This Court ought not to be seen to condone it. The impact on Ms. Adams’ Charter protected interests was so significant that the evidence ought to be excluded. [ 4 ] Although the voluntariness of Ms. Adams’ statements to the cell Sergeant was initially in issue, counsel abandoned this argument during submissions.

[ 5 ] The crown submitted that there were reasonable grounds for Ms. Adams’ arrest and the strip search that occurred later on at the station. Alternatively, if the Court finds that the strip search breached Ms. Adams’ rights, the crown submitted that the appropriate remedy is a sentence reduction pursuant to section 24(1) of the Charter as opposed to an exclusion of the evidence. [ 6 ] The crown eventually conceded that the police violated the accused’s rights to counsel by failing to implement her access to counsel for hours.

However, he submitted that this breach only occurred after the Defendant voluntarily handed over the drugs that she was concealing on her person and after she was strip searched. Furthermore, the crown submitted that the implementational breach was minor and merely technical and it would be contrary to the public interest to exclude the evidence. [ 7 ] While I agree that there were reasonable grounds for Ms. Adams’ arrest, the police flagrantly violated Ms. Adams’ rights to consult with counsel. The crown’s position that this breach only occurred after Ms.

Adams was finally paraded is irreconcilable with the unequivocal requirement that the police must implement the rights to counsel “ without delay ”. Moreover, the police performed a full strip search without first performing a pat down or giving any apparent consideration to the unique circumstances of this detainee or the nature of the allegations with respect to each of the individual detainees involved in this arrest. The police misconduct was neither trivial nor were the breaches technical. These violations were serious and the impact on Ms.

Adams’ rights was significant. [ 8 ] These are serious charges of possession for the purpose of trafficking in potent dangerous drugs. While society undoubtedly has an interest in an adjudication on the merits, our community also has an interest in ensuring that the police respect Constitutional rights, diligently ensure that the rights to counsel are implemented and do not engage in invasive and degrading strip searches of detainees without reasonable grounds. It is important to set out the facts and a detailed legal analysis that has lead to my findings that the breaches of Ms.

Adams’ rights were so significant that the admission of this evidence would undermine the integrity of the criminal justice system. B. Facts i. The initial arrest: [ 9 ] On December 14 th , 2018, various police officers were responding to a serious incident that occurred very close to the main police station in Oshawa. Acting Duty Inspector Patrick ( hereinafter referred to as Inspector Patrick ) was on scene addressing the incident when another call for service was received from dispatch.

A tow truck driver called the police to report that he was following a possible impaired driver that was close by Inspector Patrick’s location. As a result, he chose to respond to the call. Other officers must have also heard the dispatch because they arrived on scene shortly after Inspector Patrick. [ 10 ] Inspector Patrick quickly located the subject vehicle and began following it. He could see three people in the back of the vehicle who appeared to be looking back at him and he noticed some movement within the back seat.

He was aware that the tow truck driver reported that he observed a bottle of Crown Royal alcohol being passed around by the occupants. Inspector Patrick decided to pull the vehicle over. His investigation was initially entirely focussed on the driver since he was conducting a sobriety check. He did not speak to any of the occupants in the vehicle other than the driver. He noted that there were 4 occupants in addition to the driver.

One male in the front passenger seat and another male and two females in the back seat. [ 11 ] Inspector Patrick asked the driver to exit the vehicle and he moved him towards his police vehicle. He did not make any observations of any weapons in or around the driver. As Inspector Patrick was dealing with the driver, other officers were arriving on scene. The occupants of the vehicle suddenly exited without any prompting by the police. Ms. Adams emerged from the rear of the vehicle. She was immediately confrontational and verbally abusive with the police. She was yelling, screaming and swearing.

In contrast, one of the other rear occupants chose to quietly walk away from the scene. None of the officers who were present tried to detain this unidentified male nor were they interested in any of the other occupants at that point. [ 12 ] I find that Ms. Adams was not detained in any way when she chose to instigate a verbal confrontation with the police. She accused the police of arresting her “man” because he was black even though she used racial epithets while referring to him. As Inspector Patrick moved the driver away from the vehicle and towards his cruiser to arrest him, Ms.

Adams continued to yell at him and she approached him. Officer Wintle was one of the other responding officers and his attention was immediately drawn to Ms. Adams because of her excited state and verbally abusive conduct. [ 13 ] PC Wintle interacted directly with Ms. Adams. He is an experienced police officer who has been employed by Durham Regional Police Services for 20 years. He should be very familiar with the duties of the police with respect to frisk searching and the implementation of the rights to counsel. [ 14 ] Ms.

Adams was screaming that the police were racist and demanding to speak to a senior officer on the scene. PC Wintle felt that she was “trying to draw attention to herself”. This behaviour seemed to be an exaggerated reaction to the situation that both Officers Patrick and Wintle believed was intended to distract them. PC Wintle tried to explain the reasons for the stop to her and that their behaviour was not racially motivated. While he was interacting with Ms. Adams, PC Wintle heard a commotion from the back of the subject vehicle.

Inspector Patrick explained that the commotion was as a result of the front passenger unexpectedly diving back into the driver’s seat area of the vehicle. Two officers jumped on that person and they yelled “gun”. A struggle ensued within the vehicle between the officers and the person who had been the front passenger. [ 15 ] Although there were some issues during the evidence with respect to what the officers heard or saw or what they were told by other officers, I accept that Inspector Patrick believed that a gun was thrown from the back-seat area of the vehicle during the struggle.

The gun was a fully loaded prohibited 9-millimetre Smith and Wesson handgun with spent casings in the breach. [ 16 ] The scene became very chaotic considering how a routine stop suddenly turned into a very dangerous situation. The area where the vehicle was stopped is in the center of Oshawa and it is busy and populated even at that time of night. Inspector Patrick described the area as mixed residential and commercial area with a men’s hostel right across the street. There were several officers on scene who were

trying to control four suspects at once while also trying to ensure their own safety and the safety of anyone around them. [ 17 ] PC Wintle heard officers yelling gun and he actually saw a gun “flying through the air and landing on the sidewalk.” He immediately grabbed onto Ms. Adams and used a grounding technique that he referred to as “spinning” to arrest her. He grabbed her arm, spun her around and forcibly pushed her to the ground while holding on to one of her hands to gain immediate control. He handcuffed her while she was on the ground.

He did not have time at that moment to pat her down or frisk search her because he was focussed on the “preservation of the public”. He drew his firearm to take control of the other female occupant because she was standing close to where the firearm had been thrown on the ground. Tactical officers attended and they took custody of Ms. Adams while PC Wintle secured the scene. [ 18 ] Inspector Patrick advised all the officers to arrest the occupants of the vehicle for possession of a prohibited weapon.

He recalled having a discussion with PC Wintle and he clearly recalled making the decision with respect to the grounds for the arrest of the occupants of the vehicle. PC Wintle explained that he initially made the decision to arrest Ms. Adams because she was in the vehicle and her conduct with the officers. This was a highly stressful, dangerous and volatile situation in which officers had to make quick but informed decisions based on the information that they had available to them at the time. Ms. Adams was arrested for being in joint possession of a loaded prohibited handgun. ii.

Time period between the arrest and the parade: [ 19 ] After speaking with other officers, PC Wintle returned to his cruiser and discovered that Ms. Adams was detained in the back seat. He did not know if the tactical officers patted her down or searched her before placing her in his cruiser. By the time he returned to his cruiser, the scene was under control. He had time to perform a pat down to ensure that she had no weapons on her or anything that could harm herself or anyone else. Counsel specifically suggested to the officer that he had no “concern to search my client before taking her to the station”.

PC Wintle would not initially answer the question. Instead, he kept explaining that the situation was “chaotic” and that he did not know if she had been searched by the tactical officers. After being directed by the Court to respond to the question, he finally agreed that it was fair to say that he did not have any concerns with having Ms. Adams in the back seat of his police vehicle without knowing whether she had been frisk searched. [ 20 ] PC Wintle informed Ms. Adams that she was being arrested for possession of a prohibited weapon and he read her rights to counsel and caution. Ms.

Adams yelled “yes, I want my fucking lawyer”. He did not recall any further conversation. During cross- examination he was confronted with the contents of his written report that indicated that Ms. Adams was actually “yelling at me that she wanted to speak to her lawyer and her mother” as he approached his vehicle. Albeit rudely, she was unquestionably asserting her rights to counsel. [ 21 ] PC Wintle drove the two minutes that it took to get to the station. Once in the parking lot of the police station, there was a significant delay with parading each of the accused.

The arresting officers waited in the parking lot until they were advised that it was their turn for the parade process. An understanding of the time line of events is essential to contextualize my findings with respect to the complete lack of any effort by the police to implement Ms. Adams’ rights to counsel other than a perfunctory call in the middle of the night hours later: 10:10 p.m. Dispatched to respond to a possible impaired driving; 10:13 p.m. Inspector Patrick was the first on scene and he stopped the subject vehicle; 10:15 p.m. Driver arrested for impaired driving by Inspector Patrick and Ms.

Adams began yelling and screaming at police; 10:16 p.m. Police yelled gun and Ms. Adams was forcibly grounded and handcuffed by PC Wintle. Tactical officer responded and took custody of Ms. Adams; 10:30 p.m. PC Wintle discovered Ms. Adams was in the back of his police vehicle with her hands cuffed behind her back. He informed her of the charge against her and read her rights to counsel and caution. She immediately asserted her rights to counsel; 10:32 p.m. PC Wintle arrived at the central cells parking lot with Ms. Adams in the back seat with her hands cuffed behind her back; and 11:20 p.m. Ms.

Adams was finally brought in to be paraded after 48 minutes waiting while handcuffed behind her back in the back seat of a cruiser. [ 22 ] PC Wintle left Ms. Adams in handcuffs in the backseat of his cruiser for 48 minutes at the rear entrance to the police station until he received instructions to bring her in to the station to be paraded. During that period of time, Ms. Wintle did not even consider whether he should take any steps to implement Ms. Adams rights to counsel. He was asked what he was doing while he was waiting during cross-examination. He recalled that he was sitting with Ms. Adams in the cruiser.

Counsel suggested that what really happened was that PC Wintle left her client alone in the back seat of the cruiser during this time period and he denied that had occurred. Counsel repeated PC Wintle’s response to him that “you believe you stayed in the cruiser”. He replied that, other than when he briefly went inside to inform the cell sergeant of the particulars, “I believe so”.

Counsel challenged PC Wintle about leaving her client alone in the back seat of the cruiser and he said restated that, other than a period of a few minutes when he went into the station, “I don’t recall being at the back parking lot and leaving my vehicle”. [ 23 ] Counsel introduced a video of PC Wintle’s recorded conduct in the parking lot while he was waiting for Ms. Adams to be paraded. It was evident that he had not seen the video before he testified since his recollection of remaining in the vehicle did not accord at all with what he was actually doing during those 48 minutes.

For a significant portion of the 48 minutes, PC Wintle was video recorded walking around outside of his police vehicle, casually conversing with other officers in the parking lot and he appeared to be talking on a cell phone. At some points, he walked so far away from his cruiser that he can’t even be seen on the recording. PC Wintle didn’t appear to have any safety concerns with leaving Ms. Adams alone and he did not directly supervise her while she was in the back

seat of his cruiser. When confronted with his behaviour in the recording, he indicated that he didn’t recall “any of this really”. [ 24 ] During the recording, PC Wintle went to the back-seat window and appeared to be conversing with Ms. Adams. He speculated that he was explaining the procedure to her. When counsel pressed him on why he was talking to her client through the window of the closed cruiser door for 3 minutes, he said that he didn’t have an answer, he couldn’t remember what she was saying but then he suddenly recalled that she was “yelling expletives” at him. [ 25 ] I accept that Ms.

Adams was verbally abusive and belligerent when she first encountered the police and when she asserted her rights to counsel. These observations were shared by Inspector Patrick and recorded in PC Wintle’s notes to refresh his memory. The crown referred to Ms. Adams’ “less than admirable” behaviour towards the police which may have influenced the officer’s choices with respect to accommodating access to counsel. Undoubtedly, her behaviour at the roadside and the manner in which she initially asserted her rights to counsel was far from ideal. I do not condone the unwarranted verbal abuse of police officers.

Nevertheless, this misconduct does not alter the officer’s constitutional obligations. [ 26 ] While I accept that Ms. Adams was belligerent at the roadside and swore when asserting her rights to counsel, I do not accept that there is any credible or reliable evidence that she was verbally abusive after PC Wintle left the scene and headed to the police station. PC Wintle did not relate any observations of Ms. Adams behaviour while she was in the cruiser on the way to the station. Once he arrived at the station, PC Wintle clearly stated that he did not have any recollection of the time he spent in the parking lot.

It was obvious that he didn’t recall what really happened. I do not accept that he ever explained to Ms. Adams what was going on when he arrived at the station. I do not accept PC Wintle’s spontaneous recollection that she was yelling and swearing at him from the back seat. I accept the evidence of the other officers who checked on Ms.

Adams that she was yelling at one point from the back seat of the cruiser because she was complaining about medical issues. [ 27 ] It was evident in the recording that there were female officers in the parking lot while they were waiting to be paraded, including the officer who ultimately strip-searched Ms. Adams. If Officer Wintle had any safety concerns that required this young woman to be handcuffed behind her back for a long time, he could have removed Ms. Adams from the back seat of the cruiser and a female officer could have patted her down in an area that he knew was recorded.

Nevertheless, PC Wintle insisted that he would not have removed her handcuffs due to safety concerns. [ 28 ] There were four prisoners in total to be paraded and a lot of traffic in that back parking lot. PC Wintle was aware that there was going to be a significant delay before Ms. Adams was paraded. He knew that she was demanding to call her counsel of choice. In these unusual circumstances, despite the police practice that a detainee does not get to call counsel until after being paraded, he should have turned his mind to his implementational duties.

He could have taken various steps to fulfill his professional obligations. For example, at the very least, he could have called Ms. Adams’ counsel of choice to advise her that her client was in police custody. He should have considered whether there were feasible options to call counsel while in the cruiser by herself since he clearly felt comfortable giving her plenty of privacy. Instead, he did absolutely nothing because it was not a “secure area” and he didn’t feel there was any “appropriate place” for her to exercise her rights to counsel. iii.

The parade and the strip search: [ 29 ] Once inside the station, the interaction between Ms. Adams and the cell Sergeant was both audio and video recorded. It is evident from a review of the recording that Sergeant Swain had decided that Ms. Adams was going to be strip searched before he ever even spoke with her. As she was brought to the parade desk, the door to the search room was opened and female officers arrived and stood beside Ms. Adams. [ 30 ] Ms. Adams immediately and politely asserted her rights to counsel and advised Sgt. Swain of her lawyer’s name and where she practiced law.

She told the police that she had a cell phone in her bag, but she didn’t know where her bag was at that time. There were two Sergeants on duty in the cells. As Ms. Adams was speaking with Sgt. Swain, Sgt. Davidson looked up the contact information on the computer for her lawyer. Even though they had her lawyer’s information, none of the officers made any attempt to contact Ms. Condo and apprise her of her client’s arrest or that she was about to be strip searched. [ 31 ] Ms. Adams was visibly upset and shaken. She pleaded with the Sergeant to call her mother and he assured her “for sure she’ll be called”.

He asked her about any medical conditions, and she related that she has “anxiety that’s all, like I’m crying, like I can’t breathe”. The Sergeant told her she was doing a “a great job” and continued to ask her questions about whether she had consumed any alcohol or drugs. They had the following exchange: SS: Do you have any injuries? SA: I have broken ribs now SS: Right now? SA: cause they broke them, yeah The sergeant completely ignored her indication that she had an injury that was inflicted during her arrest.

He did not ask her if she wanted medical help instead, he continued to question her: SS: Do you own or have access to firearms SA: I am not going to lie I have a knife in this thing here ( she gestured to a bag of some kind ) Cst. Don’t reach for it SA: I’m not I was pointing, I was not reaching I’m just pointing, I was just showing you guys

SS: you don’t own or have access to firearms? SA: No, I have a knife there and I’m not going to lie I have cocaine in my bra SS: Samantha listen to me, I’m going to advise that because there were weapons located (unintelligible) there was lots of (unintelligible) found, a female officer and this female officer will be conducting a detailed search [ 32 ] Ms. Adams was coherent and emotional during this process. She had lost all track of time. She told the police she wanted her lawyer, her mother and that she was injured. All of these requests and concerns were ignored by the police. Ms.

Adams was not swearing, she was not belligerent or abusive in any manner during the parade process. Quite the contrary, she was articulate, appropriately responsive to the questions being asked and entirely cooperative with Sgt. Swain. She assured the police that, other than the knife in her bag and the drugs in her bra, she had nothing else on her person.

In addition, once she removed her sweater, it would have been challenging to conceal items in the type of clothing that she was wearing. [ 33 ] It is essential to note that Inspector Patrick testified that he did not have any involvement or provide additional grounds to any police officer or sergeant to perform a strip search on Ms. Adams. His recollection makes sense since he did not have any direct involvement with Ms. Adams’ physical arrest or transportation.

Although Inspector Patrick indicated that he does not have the police directives memorized, he related that a cell sergeant must approve any strip search before it is conducted, and an officer must provide reasonable grounds for a detailed search to the cell sergeant. [ 34 ] Sgt Swain testified that Inspector Patrick had provided him with grounds for a strip search for all four arrested parties, but it became apparent during his evidence that the only information that was provided to Sgt. Swain with respect to this individual was that she was arrested for possession of a loaded prohibited firearm.

Sgt Swain referred to this information as “solid grounds” for a detailed search. I find that Inspector Patrick did not request a strip search and I find that he did not provide additional reasonable grounds for a strip search of Ms. Adams to Sgt. Swain. [ 35 ] PC Wintle testified that he did not provide anyone with grounds to conduct an invasive strip search. He didn’t even know Ms. Adams was going to be strip searched until he was standing at the parade desk. Moreover, he agreed that he did not engage in a pat down search and he did not have any concerns about searching her prior to going to the station.

At page 125 of the transcript, the arresting officer testified as follows: Q. you did not know that Ms. Adams was going to be strip searched when you brought her into the central block? A. No, I had no cause to believe that she was going to be strip searched. Q. And, to you and your handling of Ms. Adams, there was no reasons for her to be strip searched; do you agree with me? A. in my handling of her? Q. yes. A. yes, that’s fair. [ 36 ] Sgt. Swain explained that he is responsible for the health and safety of prisoners in his custody. He related that the grounds to strip search Ms.

Adams would have been provided to him by the arresting or investigating officer. There is no evidence that any officer provided him with reasonable grounds to strip search Ms. Adams. Rather, he related that he had been told that a weapon with live rounds was recovered from a vehicle that Ms. Adams occupied. He did not relate being aware of any additional information like where Ms. Adams was in the vehicle, where the gun was located or what happened at the scene.

Rather, it was apparent that his view was that nothing more than an allegation that a detainee was arrested for being in a vehicle with a loaded firearm was necessary to justify a detailed search. [ 37 ] Although Sgt. Swain had already made the determination that a detailed search would be conducted prior to Ms. Adams being paraded, once she was paraded, he testified that he had additional grounds because she admitted that she had cocaine in her bra and a knife on her person. He did not however, consider her age, her antecedents if any, her attire or her cooperation with the police while she was being paraded.

He did not consider any alternative means of searching her or even inquire whether she had been frisk searched prior to her parade. He did not consider any other options like using a metal screening device that he agreed was available in the 17 division cells. He did not consider that she was wearing very little clothing once she removed her sweater and her shoes during the parade. She assured the officers that she had nothing else in her pockets. She had a tight bandeau covering her bra and tight pants on. [ 38 ] Sgt.

Swain could not explain why he felt that it was necessary to escalate to strip searching this particular detainee other than reciting the standard policy reasons for why he would authorize a detailed search. In his role as the cell Sergeant, he needs to determine if the detainee has anything on them that could injure themselves or someone else whether that is a weapon or drugs. He had to determine if the person has anything on them that could be used as a means of escape and/or whether they are in possession of any evidence related to the crime.

Finally, a detainee cannot be lodged in the cells until s/he has been searched. [ 39 ] These were all very generic grounds without providing any evidence specific to this decision, this accused or these unique circumstances. I find that Sgt. Swain believed that a detailed search could be conducted in every case with individuals who were arrested for being an occupant of a vehicle with a loaded firearm. The additional grounds for the search of Ms.

Adams turning over drugs that were secreted on her person occurred after he had already made the decision to strip search her. [ 40 ] In terms of the actual search, none of the officers who were present explained to Ms. Adams what it meant to be subjected to a “detailed search”. Instead, two female officers accompanied her into a private room to conduct the search. Neither or these female officers inquired about or conducted a frisk search first. Neither of them inquired about or noted the grounds for the detailed search of this particular accused.

Neither of these officers took detailed notes of the search process. Neither of them could recall most of the details

of the search other than it was routine. They described Ms. Adams as polite and cooperative despite the circumstances. They did not touch her during the search process. Ms. Adams handed each of her pieces of clothing to the officers and they searched the clothing. They agreed that she would have been asked to lift her breasts so they could look underneath them. Since neither of the female officers could recall the details, they could not specifically say if Ms. Adams was completely naked in the room during the search other than reciting usual practices. One of the officers recalled that Ms.

Adams was instructed to bend over while she was undressed and spread the cheeks of her behind while they visually examined her. [ 41 ] I acknowledge and appreciate that one of the female officers was very gentle with Ms. Adams. This officer even held Ms. Adams’ hand after the search process was complete and they stepped out of the room. This act of kindness however, does not alter the degrading and humiliating search that Ms. Adams was subjected to in the room. [ 42 ] The full parade process and subsequent strip search was relatively brief: 11:27 p.m. Ms.

Adams was finally paraded in front of the cell Sergeant and immediately requested to speak to her lawyer and gave the name of that lawyer; 11:29 p.m. Female officers arrived at the front desk to conduct the strip search and officers opened the search room door; 11:30 p.m. Ms. Adams advised the Sergeant that her ribs were broken, and her medical complaint was completely ignored; 11:31 p.m. In response to a question about whether she has a firearm, she volunteered information that she had a knife in a pouch on her side and cocaine in her bra and assured the police she had nothing else on her person; 11:33 p.m.

She voluntarily removed the drugs from her bra and handed them to the police, she was immediately told that “you are going to be charged with the cocaine” and she replied, “I know”. She was taken into a room and a strip searched over a period of 4 minutes; 11:37 p.m. She exited the room and she was told again that there would be additional charges for the cocaine. [ 43 ] The police did not find any other prohibited items on Ms. Adams. Once Ms. Adams exited the search room, she was advised again that “the cocaine your going to be charged with.

The cocaine is going to added onto your charges, you still got a right to call a lawyer. We’re going to take care of that.” She provided the police with the name of an alternative counsel that the police could call if they could not reach Ms. Condo stating, “you’re going to have to call Michael Jusky. He is in Toronto.” Despite the assurance that her counsel of choice would be contacted, once again the police did nothing to implement her rights to counsel. iv. Time period after the strip search: [ 44 ] Ms.

Adams asserted her rights to contact counsel from the moment of her arrest, throughout her interactions with PC Wintle and on the parade video. Despite Sgt. Swain assuring Ms. Adams that her mother would be contacted, and her lawyer would be contacted, none of the officers responsible for the implementation of her rights took any steps to make any calls on her behalf. Instead, even though she was clearly told on the parade video that she was facing additional charges of possession of narcotics, PC Wintle took his time to weigh and sort out the drugs that were recovered from Ms.

Adams before he took any steps to call anyone. [ 45 ] PC Wintle determined that Ms. Adams was in possession of individually packaged amounts of cocaine, methamphetamines and marijuana. He claimed that he wanted to determine the exact amounts and nature of the drugs before giving her the opportunity to call a lawyer because he wanted to inform her of the charges that she was facing before she consulted with counsel. I found this explanation insincere. Ms. Adams had been clearly advised twice that she was facing additional charges of possession of narcotics.

If the officers decided that they were going to charge her with more serious offences of possession for the purpose of trafficking after they processed the drugs, they could have given her another opportunity to consult with counsel at that time. There was no reason to delay implementing her rights to counsel in these circumstances. [ 46 ] PC Wintle showed little if any regard throughout his dealings with Ms. Adams for his professional obligations to implement Ms. Adams rights to counsel.

Accordingly, counsel challenged him about his understanding of what it means to provide access to counsel without delay and he replied, “that means as soon as practical”. That is, whenever it was practical for PC Wintle to make the call, that’s when he chose to do it. PC Wintle left Ms. Adams sitting in a cell for more than an hour after she had been strip searched before he spoke with her again: 12:50 p.m. An hour after she had been searched, PC Wintle attended the cells and advised Ms. Adams of the additional charges of possession for the purpose of trafficking; 1:05 a.m. PC Wintle finally called Ms.

Condo and left a message; 1:10 a.m. PC Wintle made a phone call to the other counsel Ms. Adams mentioned and left a message; and 2:30 a.m. PC Wintle finally attended the cell and indicated that her lawyer had not called back. He did not give her any other options to speak with any other counsel at that point. [ 47 ] Ms. Adams was in police custody in the back seat of a cruiser for some time between 10:15 and 10:30 p.m. without being advised of her rights to counsel. This initial period of delay was entirely justified because the police were dealing with a dangerous emergency situation.

Once that situation was under control, PC Wintle should have had different priorities. Instead, he disregarded his obligations to implement Ms. Adams’ rights to counsel for the next three hours . The statement that best summarized PC Wintle’s view of when he was required to implement the rights to counsel was when he testified that, “ I made the call as soon as I found it practical ”. He explained that this delay was due to three reasons:

• He would not remove the handcuffs from Ms. Adams while she was in the cruiser due to officer safety concerns and there was noappropriate place to consult with counsel so she couldn’t call counsel at that point; • Ms.

Adams had to be paraded prior to being able to speak with counsel and they were waiting in line to be paraded and then shehad to be strip searched; and • He had to document the drugs seized and weigh it in order to advise her of the additional charges before she was given anopportunity to consult with counsel. [48] It is obvious that PC Wintle has an erroneous concept of the nature of his obligation to implement the rights to counsel “withoutdelay”.

He blindly followed procedure that he could not call counsel before a prisoner is paraded without considering these exceptionalcircumstances or even turning his mind to, at the very least, calling Ms. Adams counsel himself while he was waiting in the parking lot.Counsel could have taken steps to protect her client’s rights. Once Ms. Adams was finally paraded, PC Wintle continued on with his ownpriorities instead of calling counsel. This was more than a cavalier attitude towards his obligations, it was a flagrant disregard of hisimplementational duties. C. Legal Analysis i.

Grounds for the arrest and detention: [49] I do not intend to address this issue beyond a

summary dismissal of the sections 8 and 9 application in terms of the grounds forMs. Adams’ arrest. Counsel submitted that the arresting officers had grounds to investigatively detain Ms. Adams but they did notpossess objectively reasonable grounds for her arrest. Counsel argued that in order for the Court to find that there were objectivelyreasonable grounds for the arrest, the firearm had to be in plain view or some direct evidence of her client’s knowledge of the presence ofthe firearm within the vehicle. I disagree.

The police can make reasonable inferences about knowledge from their observations. [50] First, I accept that both Officers Patrick and Wintle possessed subjective reasonable and probable grounds to arrest Ms. Adams.Secondly, while neither Officer provided a helpful

summary of the factors that they considered, there is a readily discernableconstellation of factors that support a finding that this subjectively held belief was objectively reasonable: • As Inspector Patrick followed the vehicle, he noticed all three rear passengers looked towards his cruiser and there was movementin the back seat; • Inspector Patrick did not see a gun in or around the driver when he asked him to step out of the vehicle; • Ms.

Adams identified the driver of the vehicle, the person who had control of the vehicle, as her “man”; • While Inspector Patrick was engaged in a lawful arrest of the driver, Ms. Adams exited the car for no apparent reason andimmediately became verbally abusive and belligerent. She approached Inspector Patrick as he moved away from the vehicle. The policebelieved her behaviour was intended to distract the police; • While police were distracted by her behaviour, the front seat passenger dove back into the vehicle and grabbed for a gun. Twonearby officers yelled “gun”, so they clearly saw it.

I infer that the gun was readily accessible since this passenger was able to grab it soquickly; and • A struggle ensued between the officers and the passenger and the gun was thrown out of the car. Inspector Patrick believed thatthe gun had been retrieved and thrown from the back-seat area of the vehicle. [51] Counsel invited the Court to elevate the reasonable grounds standard to that of a balance of probabilities or having to meet atleast a prima facie case. That is not the standard.

In addition, I note that the conclusions drawn by the officers do not have to be the onlypossible conclusion, the best conclusion or even the ultimately correct conclusion however it must be reasonable. Please see: R. v. Bush,2010 ONCA 554 , [2010] O.J. No. 3453 (C.A.) Moreover, this was a dangerous and chaotic situation in which the police wereexpected to make quick but informed decisions. [52] I find that there were objectively reasonable grounds for the arrest of Ms. Adams, and she was not arbitrarily detained at anypoint prior to her arrest.

The sections 8 and 9 Charter applications with respect to the reasonableness of Ms. Adams’ arrest are dismissed. [53] While the initial arrest of Ms. Adams was lawful, the conduct of the police that followed was both constitutionally flawed andunprofessional. ii. Failure of the police to implement Ms. Adams’ access to counsel: [54]

Section 10(

b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instructcounsel without delay. The seminal Supreme Court of Canada decision on this issue is R. v. Suberu, 2009 SCC 33 , [2009] 2S.C.R. 460. At paragraphs and 40 to 42, the Supreme Court explained that: [T]he purpose of s. 10(

b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffera significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position oflegal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntaryself-incrimination. A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and theinterference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of

self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regainingtheir liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(

b) right to counsel is toserve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining theirliberty, the police must immediately inform them of the right to counsel as soon as the detention arises. To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-defined andunworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutesa permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. Anill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specificobligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).

Subject to concernsfor officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty toinform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [55] Undoubtedly, there are situations when the police will not be in a position to immediately implement a detainee’s rights tocounsel. In R. v. Wu, 2017 ONSC 1003 , [2017] O.J. No. 653 (S.C.J.), Justice Di Luca carefully reviewed multiple decisionswherein implementational delays did not result in a Charter violation.

For example, police can delay the implementation of this right incircumstances of urgency or danger. After reviewing multiple decisions, Justice Di Luca provided the following helpful guiding legalprinciples when assessing the reasonableness of the delay at paragraph 78: The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. Thecase law on this issue reveals some general guiding principles that provide a framework for this assessment: a.

The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerouscircumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspendedunless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75. b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following generalcategories emerge from the case law: i.

Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 atparas 276-8, and R. v. Learning, at para. 75; ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122; iii. Cases where there safety concerns for the accused, see R. v. Strehl, (ONSC) at para. 4; iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31; v.

Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and, vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has notelephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 at para. 29-30, and R. v. Khairi, 2012 ONSC 5549. c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v.

Soto, 2010 ONSC 1734 atpara. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para.70. d. A general or bald assertion of "officer safety" or "destruction of evidence" concerns will not justify a suspension of the rightto counsel, see R. v. Patterson, 2006 BCCA 24 at para 41-42, and R. v. Proulx, 2016 ONCJ 352 at para. 47. e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessmentaided by their training and experience.

A policy or practice routinely or categorically permitting the suspension of the right to counsel incertain types of investigations is inappropriate. f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para.83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel,steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient.

The policemust still comply with the imple​mentational component as soon as circumstances reasonably permit. A decision to suspend rightsthat is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that thesuspension is as limited as is required in the circumstances. g. The longer the delay, the greater the need for justification.

The right to counsel must be given "without delay." The case lawaddressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to anextreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker, (ON SCDC). In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and thetarget of the search was known to be part of a criminal organization that was willing to confront and shoot police. h.

The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4795 at para. 70. [Emphasis added] [56] It is obvious that Cst. Wintle blindly adhered to a police practice of waiting to contact counsel until after the parade process

without any consideration of the unique situation of the unusually lengthy delay. While an initial delay may have been justified, he didnot reassess his obligations in these circumstances. He didn’t even consider them. He could have taken steps to implement Ms. Adamsrights to counsel in that parking lot, he just didn’t think about it because he believed that “without delay” meant whenever it was“practical” for the police to make the call. As noted, he could have called counsel himself to alert her that her client would need legaladvice. He could have inquired if Ms.

Adams had a cell phone and considered whether a private call could be accommodated in the backseat of the cruiser. PC Wintle clearly had no difficulty leaving her completely alone in the cruiser and stepping an appreciable distanceaway from it. [57] In R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495 (S.C.C.), the Supreme Court reiterated the importance ofimplementing the rights to counsel particularly in situations wherein the detainee is vulnerable to the coercive powers of the state atparagraphs 21 to 24: The purpose of the s. 10(

b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but, equallyif not more important, to obtain advice as to how to exercise those rights": Manninen, at pp. 1242-43. The right to retain and instructcounsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu,2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under control of thestate and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed": R.v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated "withoutdelay": This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state.

Not [page506] only has this person suffered a deprivation of liberty, but also this person may be at riskof incriminating him or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate needof legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty ... Unders. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request... [T]he right to counsel protected bys. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis added; p.191.] He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain an individual: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger).

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arrestingofficer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably availableopportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)).

Whether a delay in facilitating access to counsel is reasonable is a factualinquiry. [58] To be clear, I am not suggesting that Officer Wintle had to give Ms. Adams his cell phone for her to call counsel. There wereother options. For example, Ms. Adams told the cell Sergeant that she had a cell phone in her bag although she did not know where it wasat that time.

In Taylor, supra, at paragraphs 29 and 30 the Supreme Court agreed that officers do not have to hand over their cell phonesto a detainee, but they should consider a means to provide private access to a phone: The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have providedhis own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10(b).

The Crown takes issue with this finding, and Iagree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual. But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(

b) doesnot create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his rightto counsel at the first reasonable opportunity. [59] PC Wintle did not even consider what he could do to implement the rights to counsel in this situation. While he emphaticallystated that he would not have removed Ms. Adams’ handcuffs due to safety concerns while she was in the back seat of the cruiser, hedidn’t explain whether there were any other creative solutions.

As the Court stated in Taylor at paragraph 33, “constitutional rightscannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required toturn the right to counsel into access to counsel.” [60] The crown submitted that the failure to implement the rights to counsel over this period of 48 minutes was justifiable because

the officer was waiting for the prerequisite parade process to be completed before he contacted counsel. The crown provided me with afew distinguishable precedents that support the legal proposition that police are entitled to hold off on their implementational duties untilafter a detainee has been paraded and asked questions that are intended to protect the safety of the officers and the detainees as opposedto investigative purposes. [61] I agree that the police may delay the implementation of the rights to counsel for a reasonable period of time to allow for theparade process to be completed.

However, none of the cases provided by the crown contemplated a remarkably extended delay in theparade process. Moreover, I am not concerned with the nature of or the propriety of the questions asked by the cell Sergeant. The issue inthis case is the inordinate delay prior to the booking, the way she was detained during this period of delay and how this may haveimpacted her responses to the cell Sergeant. It is also about the strip search that was conducted after she was booked and before she wasgiven any opportunity to speak with counsel.

This 19-year-old defendant was held in an intimidating situation without any explanation toher about what was happening, without any sincere assurance that her lawyer would be contacted or any attempt to mitigate the delay bycontacting counsel while they were waiting. She was in an incredibly vulnerable position and needed that “lifeline” to counsel. [62] In R. v. McGuffie, 2016 ONCA 365 , [2016] O.J. No. 2504 (Ont.C.A.), the Court of Appeal dealt with a factualscenario involving the detention of the appellant who police believed had a handgun.

The Court observed at paragraph 44 that the“appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it.” [63] Once Ms. Adams was being paraded and before she was stripped searched, the cell Sergeant should have considered whetherher request to consult with counsel could be accommodated but he also ignored her request to contact her lawyer. Similarly, in McGuffie,supra, at paragraph 68, the Court noted that: When Constable Greenwood finally got the appellant to the police station, his superiors did not express any concern about the appellant'ss. 10(

b) rights or, more specifically, any concern about whether the appellant had been given the opportunity to speak to his lawyerbefore undergoing the proposed strip search. [64] The Ontario Court of Appeal provided a succinct and applicable statement of law in an endorsement in R. v. Philogene, [2006]O.J. No. 4601 at paragraphs 17 to 19 (Ont.C.A.): We also agree with the appellant's submission that his s. 10(

b) rights were violated. Although the appellant told the arresting officer that he wished to speak to a lawyer when he arrived at the station, and this wish wascommunicated to the booking sergeant by the arresting officer, the appellant was not provided with access to a telephone in the hour andthirty-five minutes that he was detained in an interview room before he was interviewed by Constable Imrie. The duty to facilitate contact with counsel requires the police to offer to use of the telephone. See Bartle v. The Queen (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.).

The fact that the breach of the appellant's right to counsel involved the implementationalaspect of the right as opposed to the informational aspect still resulted in the infringement of the appellant's s. 10(

b) rights. This is not asituation of the appellant failing to be diligent in the exercise of his right to counsel; he was never given the opportunity to be diligent inexercising that right prior to the breach of his right to counsel. [65] Shortly after Ms. Adams arrived in the parking lot at 10:32 p.m. until her lawyer was finally called at 1:05 a.m., she was notgiven any opportunity to contact counsel despite diligently asserting her rights. A 19 year-old woman spent two and a half hours in policecustody before any officer took any steps to implement her rights to counsel.

Thereafter, from 1:05 a.m. to 2:30 a.m., another hour and ahalf went by without consulting with counsel. During this time, she was not told what was happening with respect to the calls to hercounsel and, once counsel could not be reached at that time of the morning, she was not given any other options. [66] Ms. Adams spent a total of 4 hours in police custody without any opportunity to consult with counsel and she never did get tospeak with counsel. The implementation of her rights to counsel was not just delayed it was completely denied. I find that Ms. Adams’section 10(

b) rights were obviously and flagrantly violated. iii.

Section 8 violation: [67]

Section 8 of the Charter guarantees that everyone has the right to be secure against an unreasonable search and seizure. I findthat Ms. Adams’ initial arrest was lawful, and this was a search incident a lawful arrest however, it is the manner of the search that is thesubject of consideration. The warrantless strip search of Ms. Adams was presumptively unreasonable. The Crown must rebut thispresumption. [68] The leading case on the constitutionality of strip searches is the Supreme Court of Canada’s decision in R. v. Golden, 2001 SCC83 , [2001] 3 S.C.R. 679.

I do not need to consider any cases beyond Golden to arrive at the conclusion that the strip search inthe circumstances of this case violated Ms. Adams’ rights to be free from an unreasonable search. Nevertheless, I also found thedecisions of R. v. Gonzales, (2017) 2017 ONCA 543 , 136 O.R. (3d) 225 (Ont.C.A.) and R. v. McGuffie, 2016 ONCA 365, [2016] O.J.

No. 2504 (Ont.C.A.) to be very instructive. [69] At paragraph 46, the majority of the Supreme Court in Golden, supra, recognized that Courts must find a balance between theliberty interests of the accused and legitimate law enforcement concerns: This Court has emphasized on many occasions the need to strike the appropriate balance between the privacy interests of the accused onthe one hand and the realities and difficulties of law enforcement on the other hand, most recently in the case of R. v. Araujo, [2000] 2S.C.R. 992, 2000 SCC 65.

Similarly, in the present case, an appropriate balance must be achieved between the interest of citizens to befree from unjustified, excessive and humiliating strip searches upon arrest, and the interests of the police and of society in ensuring thatpersons who are arrested are not armed with weapons that they may use against the [page706] police, themselves or others, and infinding and preserving relevant evidence.

[ 70 ] Throughout this seminal decision, the majority emphasized the unique considerations with respect to this type of search because of how invasive and degrading it is for the detainee. The Supreme Court repeated a number of times that: it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them.

Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive. [ 71 ] Considering the invasive nature of a strip search, the Court cautioned at paragraph 90 that: Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. [ 72 ] Sgt.

Swain made the decision to strip search all 4 individuals who were arrested that night because of the nature of the charge. He treated this important decision as a matter of routine practice due to the nature of the charge. The fact that the arresting officers had reasonable grounds to arrest Ms. Adams for a firearms offence is not enough on its own to justify a strip search. If that were the case, police could routinely strip search every person who was arrested for possessing a firearm regardless of the individual circumstances of the arrest or of the detainee.

In Golden , supra , the Supreme Court clearly stated at paragraphs 98 and 99 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, even where the strip search meets the definition of being "incident to lawful arrest" as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required.

In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra , at pp. 185-86. However, this conclusion was reached in the context of a "frisk" search, which involved a minimal invasion of the detainee's privacy and personal integrity.

In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual [page733] freedom and dignity. 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.

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. [ 73 ] Similarly, in R. v.

Gonzales , supra , at paragraphs 137 to 139 the Ontario Court of Appeal emphasized once again that something more than reasonable grounds for an arrest is necessary to justify a strip search and the mere possibility that a person may be concealing evidence is not sufficient: Third, strip searches must not be carried out as a matter of routine, an inevitable consequence of every arrest: Golden , at paras. 90-95 . Fourth, in addition to the reasonable grounds which must underpin the arrest for it to be lawful, additional reasonable and probable grounds must also justify the strip search: Golden , at paras. 98-99 .

Finally, and it follows logically from the necessity of reasonable and probable grounds to justify the strip search, the mere possibility of an individual concealing evidence is not [page251] sufficient to justify a strip search to locate that evidence: Golden , at para. 94 . And further at paragraphs 142 and 143 : As we have seen, the inquiry into the unreasonableness of a strip search is not co-extensive with the basis for the arrest to which it is said to be incident. As with all searches incident to arrest, a strip search must be for a purpose related to the arrest.

But reasonable and probable grounds beyond those that justify the arrest are required to render the strip search reasonable. And where the purpose of the strip search is to discover or prevent the destruction of evidence, the mere possibility that evidence might be found falls short of what is required. From what I have said, it follows that the trial judge erred in treating as dispositive of the lawfulness of the strip search the existence of reasonable grounds for the predicate arrest.

Further, to the extent that his statement [at para. 35] "[t]here were no additional factors advanced suggesting this strip search was not warranted" suggests that it was for the appellant to adduce evidence, it comes uncomfortably close to reversing the burden of proof. After all, this was a warrantless search that is presumptively unreasonable. The burden of overcoming presumptive unreasonableness lies on the Crown, not the appellant. [ 74 ] It is the crown’s burden to overcome the presumptively unreasonable nature of this search. The crown submitted that the additional evidence that Ms.

Adams concealed illicit evidence in her bra was enough to establish the reasonableness of the strip search. Even if Sgt. Swain’s initial reason to strip search Ms. Adams was bolstered or supported by the subsequent discovery of drugs secreted in her bra, he was still obliged to reasonably assess all of the circumstances before making an informed decision. Sgt. Swain’s decision was only informed by the nature of the initial charge and thereafter, he didn’t consider the full circumstances of this particular detainee.

More importantly, he didn’t turn his mind to other alternative means of addressing his expressed safety concerns. At paragraphs 93 and 94 in Golden , the Court provided the police with guidance on how to deal with concerns for the preservation of evidence and safety concerns: The reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the arrestee. Where arresting officers suspect that evidence may have been secreted on areas of the body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in the circumstances.

For instance, in the present case, it was suggested that the

appellant might have dropped the drugs on the sidewalk or in the police cruiser on the way to the station and that it was thereforenecessary to search him in the field. As we discuss below, however, the risk of his disposing of the evidence on the way to the policestation was low and, had the evidence been dropped in the police cruiser on the way to the station, circumstantial evidence could easilylink it back to the accused.

In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons asan incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a "frisk" or "pat-down"search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on [page731] hisperson.

Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the caseraise the risk that a weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or forweapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify astrip search. [75] There is no evidence that any officer performed a frisk search on Ms. Adams at any point that night to attenuate any concernsprior to strip searching her.

The Inspector did not request a strip search. The arresting officer said that he had no safety concerns and hedidn’t even know she was going to be strip searched until the parade. The cell Sergeant was not provided with any additional reasonablegrounds for the strip search by any of the investigating officers. The cell Sergeant did not inquire if Ms. Adams had been a frisk search.He was faced with a cooperative, tightly clad, underdressed young female who voluntarily handed over items that were secreted in herbra. The Sergeant should have considered all other alternatives prior to the strip search.

Instead, he authorized a highly invasive searchbased on a mere possibility of locating evidence or weapons. [76] The crown submitted that the police have an obligation to ensure the safety of other prisoners in the cells and that there areheightened safety issues in a custodial setting that would justify a strip search. However, Ms. Adams was not being transported to aninstitution, she was being held over night at the police station.

The Supreme Court addressed these concerns in Golden, supra, at paras96 and 97: It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodialsetting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need toensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However,this is not the situation in the present case.

The type of searching that may be appropriate before an individual is integrated into theprison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individualswho are detained briefly by police, such as intoxicated individuals held overnight in police cells: [page732] R. v. Toulouse, [1994] O.J.No. 2746 (QL) (Prov. Div.). The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v.Coulter, [2000] O.J.

No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest andshort-term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified whenintroducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, differentconsiderations arise where the individual is only being held for a short time in police cells and will not be mingling with the generalprison population.

While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons thatthey could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routinestrip searches of all arrestees. [77] Finally, in addition to the failure of the parading Sergeant to consider other alternatives to strip-searching Ms.

Adams, I foundthe cavalier attitude of the two female officers about what they viewed as the “routine” nature of this invasive search quite troubling.They should have turned their minds to why they were conducting a strip search. They should have taken proper notes of the searchprocess. Most importantly, they should never have had a young woman standing completely naked in the search room particularly whenshe was being instructed to bend over to have her anus visually examined by the police. iv. Section 24(2) analysis: [78] In R. v. Grant, 2009 SCC 32 , [2009] S.C.J.

No. 32, the Supreme Court of Canada provided the three guidingconsiderations for a Court to assess and balance when determining the effect of excluding or admitting constitutionally tainted evidenceon society's confidence in the justice system: [78] I. the seriousness of the Charter-infringing state conduct; II. the impact of the breach on the Charter-protected interests of the accused; and III. society's interest in the adjudication of the case on its merits. [79] I must consider the seriousness of the police misconduct with respect to two different Charter violations, the impact that theseCharter violations had on Ms.

Adams’ rights and society’s interests in proceeding with this matter considering the serious nature of thecharges. Balancing these considerations as well as society’s interests in proceeding on the merits because these are serious drug charges,I must decide if the Applicant has established on the balance of probabilities that the admission of this evidence would bring theadministration of justice into disrepute. [80] Prior to embarking on this analysis, I must first decide whether there is some connection between the evidence that is sought tobe excluded and the Charter violations.

Section 24(2) of the Charter requires that the impugned evidence must have been “obtained in a

manner” that infringed the Applicant’s rights. The crown submitted that the implementational breach and the strip search only occurredafter the applicant’s statement and after she handed over the drugs to the cell Sergeant, so this evidence was not obtained in a manner thatinfringed her rights. a.

Section 10(

b) violations: [81] Considering my findings that Ms. Adams’

section 10(

b) rights were violated before she interacted with the cell Sergeant, theevidence that was subsequently obtained from her was temporally and contextually related to the breach. As a result, I find that this caseis clearly factually distinguishable from R. v. Boukhalfa, 2017 ONCA 660 , [2017] O.J. No. 4349 (Ont.C.A.) and R. v. Do, 2019ONCA 482 , [2019] O.J. No. 3018 (Ont.C.A.). Moreover, the

section 10(

b) breach was coupled with an unlawful strip searchand each of the breaches were a part of a continuous transaction. As Justice Laskin observed in R. v. Pino, (3d) 130 O.R. 561 (Ont.C.A.)at paragraph 73: Here, the two s. 10(

b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from thetrunk of Ms. Pino's car and all three Charter breaches are part of the same transaction. That transaction or the common link between theevidence and the breaches is Ms. Pino's arrest. [82] In addition, even if I am in error and the implementational breach only occurred after the Applicant was paraded, I would stillfind that the evidence was obtained in a manner that infringed Ms. Adams’ rights. In R. v.

Pino, supra, at paragraphs 48 to 50, the Courtspecifically addressed an implementational breach that occurred after evidence was discovered and found that: This is a difficult issue. I have concluded that the trial judge erred in law by holding that Charter breaches after the discovery of thechallenged evidence cannot meet the "obtained in a manner" requirement in s. 24(2). He considered himself bound by appellateauthority. I take a different view of that authority; I do not read it as precluding my conclusion.

I think the Supreme Court's generous andincreasingly broad approach to the "obtained in a manner" requirement allows the court, in an appropriate case, to exclude the evidencebecause of a Charter breach occurring after the evidence was discovered. I find support for my conclusion in the trial judge's own extra-judicial writing as well as in other academic commentary. In this case, I accept Ms. Pino's submission that all three Charter breaches found by the trial judge satisfy the "obtained in a manner"requirement in s. 24(2).

They are all "temporally" and "contextually" connected to the evidence sought to be excluded; and they alloccurred in the course of the same "transaction": Ms. Pino's arrest. …. On a superficial reading of s. 24(2), one might be tempted to conclude that the "obtained in a manner" requirement can only be met by acausal connection between the breach and the discovery of the evidence: "but for" the breach the evidence would not have beendiscovered.

But the Supreme Court has long recognized that a causal connection is unnecessary. [83] PC Wintle’s apathy towards his professional obligations throughout his dealings with Ms. Adams to implement her rights tocounsel without delay was confounding and disturbing. In addition, once she was being paraded, the cell Sergeant did not address Ms.Adams’ immediate request to consult with counsel of choice or even consider whether she should have been given that opportunitybefore she was strip searched.

The Court of Appeal’s description of the officers’ conduct in the McGuffie, supra, decision at paragraph76 is apt: The police misconduct falls at the very serious end of the continuum described in Grant, at para. 74. Constable Greenwood and, to alesser extent, other officers, totally disregarded the appellant's rights under ss. 8, 9 and 10(

b) of the Charter. Constable Greenwoodseemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He wasequally oblivious to his obligations under s. 10(b). [84] The officers’ failings in this case are symptomatic of a more significant problem within Durham Regional Police services.

Therehave been two recent Ontario Court of Appeal decision that specifically relate to issues within Durham Regional Police services thatreflect a systemic lack of understanding of the nature of their obligations to implement a detainee’s rights to counsel “without delay”. [85] In R. v. Rover, 2018 ONCA 745 , [2018] O.J. No 4646, the Court of Appeal addressed the unconstitutional practice ofDurham Regional Police Officers delaying the implementation of an arrested person’s access to counsel until after a search warrant hasbeen executed.

The Court of Appeal found that (at paragraphs 35 and on): While there was no causal connection between the discovery of the drugs and the s. 10(

b) breach, there was a close temporal connection.The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561. The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have along-term negative effect on the repute of the administration of criminal justice. As explained in R. v. Grant, 2009 SCC 32, [2009] 2S.C.R. 353, at para. 70: Finally, s. 24(2)'s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, butrather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justicesystem.

The rationale for the exclusionary rule identified in Grant, as applied in these circumstances, requires a consideration of the long-termimpact on the reputation of the administration of justice caused by the admission of evidence obtained in an investigation conductedunder a police practice that inevitably and routinely denies detained persons their constitutional right to access counsel. The systemicnature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.

The trial judge described the state misconduct as "serious" and reflective of the police disinterest in the appellant's rights. Those

observations are fully justified. Apart entirely from never turning their mind to the actual need to delay the appellant's access to counsel,the officers showed no interest in mitigating the delay. And further: The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidanceabout the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police whiledetained. The psychological value of access to counsel without delay should not be underestimated. In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police pu

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