R. v. Aziz, 2011 ONCJ 124

COURT FILE No.: Toronto 316453 DATE: 2011·03·01 Citation: R. v. Aziz, 2011 ONCJ 124 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MASAUD ABDUL AZIZ Before Justice P.

Robertson Heard on April 27, 30, May 4, September 13, September 17, 2010, January 4 and January 25, 2011 Reasons for Judgment released on March 1, 2011 Michael Mederios ....................................................................................................... for the Crown Jason Rabinovitch ...................................................................... for the accused Masaud Abdul Aziz ROBERTSON, J.: [1] The accused, Masaud Abdul Aziz was charged with impaired driving and operating a motor vehicle with a blood alcohol level overthe legal limit. [2] On January 4, 2011, I convicted the accused of impaired driving and at the request of the Crown, directed the charge of Over 80 bestayed. [3] At the commencement of trial, the defence filed a number of Charter applications, one of which sought a stay under s. 24(1) for analleged unlawful strip search.

The accused had, following his breath tests, been stripped search before being housed in police cells tosober up. [4] Such an Application in my view is entirely collateral to the issues before this court. The alleged breach has nothing to do with theobtaining of the evidence or issues of due process or fairness as to how the charge would be tried. Such applications can addsignificantly to trial time – in this case, an additional 2 days. The desirability of joining what is essentially a tort action to a criminal trialhas been the subject of some considerable judicial comment; see Duncan, J. in R. v. D.

W. [2009] O.J. 331 (O.C.J.), R. v. Cutforth(1987) (AB CA), 40 C.C.C. (3d) 253 (Alta. C. A.) and most recently, ODonnell, J. in R. v. Muthuthamby [2010] O.J.4110 (O.C.J.). [5] Like Justice ODonnell, I have decided to entertain this Application. I have done so largely because the judicial landscape is ratherunclear and there are few appellate judgments to offer much guidance as to whether such Applications should be entertained. Although Iagreed to hear this Application, I considered it premature until a decision was made on whether the Crown could prove the case againstthe accused.

I do not consider it a good use of precious trial time to hear 2 days of testimony and argument on an issue that is entirelyirrelevant until a decision has been made as to the guilt of the accused. Having made that finding on January 4, I heard the Application. The following is my judgement. The Issue and the Position of the Parties [6] The defence submits that the accused’s s. 8 rights were violated when, following the provision of his breath samples, he was subjectto a strip search before being placed in the police cells to sober up.

Their position is that the only appropriate remedy is a stay. [7] The Crown submits there was no s. 8 violation; that the officer in charge of the station conducted a proper individual assessment asto the necessity of a strip search and that the strip search was lawful. Alternatively, if the Court was to find a s. 8 breach, the Crownposition is that the appropriate remedy is not a stay, but a reduction in sentence.

Summary of the Evidence [8] Much of the evidence is not in dispute.

[9] Mr. Aziz was arrested for impaired driving and was transported to 41 Division, Toronto Police Service (TPS) to provide breathsamples. He was subject to a level 1 or pat down search while he waited to enter the booking hall and once inside, a more intrusive level2 search was conducted in front of the booking officer. The accused was required to empty his pockets and items catalogued. Noweapons or contraband were located at any time. He was compliant.

Following the search he provided two breath samples, both ofwhich exceeded 200 mgs of alcohol per 100 millilitres of blood. [10] Following his breath tests he was returned to the booking hall. The Officer in Charge was Sgt. Scriven. He testified hewas told that: 1) Mr. Aziz had significantly elevated blood alcohol readings, both over 200 mgs. and 2) Officer White informed him that Mr. Aziz was un-cooperative. [11] Based on the high readings, Sgt.

Scriven decided that the accused had to be held in police cells until he was sober enoughto ensure that he was not a danger to himself and coherent enough to understand the release process. Given the breath readings arealmost 3 times the legal limit, I think that decision is unassailable. [12] Sgt. Scriven testified at no time was it contemplated Mr. Aziz would be transported to court for the purpose of beingshow caused; it was always his intention to release him from the station. [13] Sgt. Scriven also ordered a level 3 or strip search be carried out before Mr. Aziz was placed in the cell.

It was agreedbetween the parties that the manner in which the search was conducted was either a “non-factor” or “not determinative” of whether thesearch was unlawful. On the agreed statement of facts, I find that the search was conducted in as respectful a manner as possible,although I accept a strip search is inherently degrading and humiliating. [14] Sgt. Scriven testified that he ordered the strip search because of a constellation of three factors: 1) The high alcohol readings; 2) Mr.

Aziz had been described to him as being un-cooperative; he refused to answer when asked if there was anyone who could pickhim from the station; 3) He could not ensure that Mr. Aziz would remain segregated from the other prisoners. [15] Sgt. Scriven testified that although it was the constellation of all three factors, the overriding factor leading him toauthorize the strip search was his inability to ensure the continued segregation of Mr. Aziz.

Although all 3 factors were relevant, headmitted, but for the concern over the segregation issue, he would not have authorized the level 3 search. [16] He testified he does not normally authorize a strip search for an impaired driver, barring the presence of some other riskfactor which would justify it, provided he can reasonably ensure segregation of the individual. On this day however, the cells were overcapacity. [17] The structure of the 41 Division cells was described as consisting of 12 cells in two rows of 6 and a bull pen. Sgt.

Scrivenidentified the bull pen as being used for youths or female prisoners, to ensure their segregation. [18] His first contact with Mr. Aziz was shortly after 6 a.m. It that point there were 14 people in custody in the station whichis over capacity for the facility. By 5 a.m. that morning, the facility was unable to ensure the isolation and segregation of prisoners. [19] Although Sgt. Scriven did not know if each cell was physically occupied when Mr. Aziz was ready to be placed in hiscell, he was aware that every cell had been assigned to a person presently in custody and in the station. [20] Sgt.

Scriven identified 41 Division as very busy as it is the central lock up for all of Scarborough, handling the arrests of41, 42 and 43 Divisions. In addition, a breath technician is often located at the Division resulting in arrestees from other parts of the Citybeing processed at the station. [21] Sgt. Scriven acknowledged that, “the possibility of not being able to ensure segregation is always present” and as a resultthere is always a risk that he will not be able to ensure a person’s continued segregation.

He acknowledged, “I don’t have a crystal ball…regarding what will be coming through the front door.” [22] Sgt Scriven denied that it is a general policy that if you can’t ensure segregation that a level 3 search should beconducted. He testified that this is not specifically covered in the policy, but it is a risk factor which is part of the policy. [23] The policy of the TPS regarding strip searches is exhibit 7 before me. It is a policy developed following R. v. Golden2001 SCC 83 , [2001] S.C.J. 81 (S.C.C.).

Appendix B of that document is titled, “Risk Assessment – Level of Search.” Thepolicy makes it the responsibility of the officer in charge to decide whether a Level 3 search will be conducted. When assessing the level of search, the OIC/police officer shall on a case-by-case basis, evaluate the circumstances relevant to theindividual to be searched and determine the appropriate level of search required to address any risk factors, keeping in mind that thesafety of the officers, the individual and others is paramount.

The OIC is responsible for ensuring that the level of search appropriatelyaddresses the risk factors associated to the current arrest including, those related to the person, the logistical issues such as the type oftransportation and contact with others that this individual is expected to encounter. [24] The policy sets out the risk factors that an officer who is contemplating a Level 3 search shall consider. That list is as

follows: 1) Consider all of the circumstances, including but not limited to 2) The details of the arrest 3) The history of the person 4) Any items already located on the person during a Level 1 or 2 search 5) The demeanour or mental state of the individual 6) The risks to the individual, the police, or others, associated with not performing a Level 3 search and 7) The potential that the person will come into contact with other detainees, creating an opportunity for the person to hand off contraband, weapons, etc…to another person; reference is made to R. v. Coulter [2000] O.J. 3452 (Ont.

C.J.) . [ 25 ] It is this last factor that is central to the resolution of this case. The Law The Strip Search: Was there a

Section 8 Charter Violation? [ 26 ] The strip search was a warrantless search. It is prima facie unreasonable. The onus falls to the Crown to show that it was reasonable. R. v. Golden is the leading case on strip searches. The Supreme Court of Canada set out a number of constitutional standards for strip searches.

These include: - Strip searches cannot be carried out as a matter of routine policy but must be based on a case by case assessment - They cannot be carried out abusively or for the purpose of humiliating or punishing the arrestee and - Police must have reasonable and probable grounds to justify a strip search. [ 27 ] Although Golden was a case about strip searches incident to arrest, the majority of the Court also addressed the different standards that apply when dealing with searches of individuals who are entering a custodial setting.

Iacobucci and Arbour JJ. writing for the majority stated the following at para. 96: We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. The court went on and at para. 97 drew a distinction between those destined to enter the prison population and those who were going to be held only for a short time in police cells and then released.

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. 3452 (O.C.J.) at paras. 26-27 , which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving.

Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population .

While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees. [ 28 ] What the Supreme Court of Canada noted with approval was the distinction made by Duncan, J. between two groups, “those entering the general prison population” and the “short term detainees”.

At para.26 of Coulter, Duncan J. stated, “I have no hesitation in concluding that strip searching anyone who is entering the prison population is necessary, justified and reasonable.” [ 29 ] Exacting what group is it that Duncan, J. is referring to as “anyone entering the prison population.”? In my view that has to include those individuals being held in police cells awaiting transport by wagon to court, e.g. those being held for show cause.

At that point they are “entering the prison population.” The other group – or short term detainees are those who are being held in custody for a short period but who are not going to be “mingling with the general prison population.”; most frequently those waiting to sober up before being released. This distinction is critical in my view to understanding both the distinction made by Duncan, J. and the Supreme Court of Canada’s endorsement of the distinction between the two groups. It is in part what justifies why different considerations exist in deciding on the acceptability of strip searches.

In Coulter, Duncan, J. noted that, “The practice of separating these offenders [impaired releasees] from other arrestees is already in place [in Peel] and that practice, together with a through frisk search is sufficient to reduce any real concern and render such highly intrusive searches unnecessary.”; para. 28. The evidence in Coulter was that the “impaired releasees” were kept separate and apart from other prisoners in the bull pen while others were lodged in separate cells; see papa. 28.

[30] A long line of cases was provided me during the able argument of both counsel but I find it necessary to only makereference to three: R. v Samuels 2008 ONCJ 85 , [2008] O.J. 786 (O.C.J.), R. v. Chowdhury [2009] O.J. 4251 (O.C.J.) and R. v.Muthuthamby [2010] O.J. 4110 (O. C. J.). [31] The decision that I have come to is in my view entirely consistent with all three of these recent judgements. [32] Samuels was an Over 80 case. Like Aziz, after providing breath samples and due to his extremely high readings, Samuelswas lodged in police cells to sober up. He was strip searched before being placed in the cells.

Nakatsuru, J. found that despite a claimthat the need for strip searches was being assessed on a case by case basis, the booking sergeant was of the firm attitude that anyonelodged in a 41 Division holding cell was deemed to enter the prison population and therefore would be strip searched; see para. 52.

Inadditional to obviously finding this to be unconstitutional, the Court noted it was contrary to the expressed wording of the police policy[the same policy that is before me] that mandates he is to consider individual factors such as details of the arrest, the history of thedetainee and amongst other considerations, the potential that the person will come into contact with other prisoners.

The policy requiresthat each situation be assessed on a case by case basis. [33] In Samuels, Nakatsuru, J. noted that at the time the accused was housed, not all the police cells were occupied and thatthe physical setting of the cell Mr. Samuels was housed in, effectively isolated him from the other prisoners; see para. 54-55. The Courtconcluded in finding that there were no justifiable safety concerns to support the strip search of the accused; that there was “no potentialfuture co-mingling with other prisoners.”; see para. 51. [34] Chowdhury is another 41 Division case.

In that case the staff sergeant who authorized the search did not testified but thearresting officer testified that it was the routine policy of the TPS to strip search anyone being placed in a holding cell. The TPS policydocument on strip searches was not in evidence before Borenstein, J., but it is clear that the testimony of the arresting officer is atcomplete odds with it. Although the issue of the inability to keep impaired releasees separate did not arise on the evidence inChowdhury, I note his Honour stated at para. 36, Perhaps a strip search would be justified if Mr.

Chowdhury was going to be placed in a holding cell with other prisoners. I heard noevidence that that was even a possibility that night. There were potentially a dozen empty cells. The strip search was conducted as aresult of a routine policy… [35] The last case I wish to refer to is Muthuthamby, a decision of Justice ODonnell. Unlike the others, this is a 32 Divisioncase. Here too, there appears to be confusion amongst the ranks as to when a strip search can be authorized.

Although the Officer inCharge acknowledged that it is to be based on a case by case analysis, she also testified that the Toronto Police Service policy requiresthat every person being placed in a cell must be strip searched. [36] Again the TPS Policy on searches was an exhibit before the court and it is clear that the document does not authorize stripsearches for everyone who is housed in a cell. [37] The cell structure at 32 Division consists of 8 individual cells, 4 cells in each row with a bull pen area at the end of thetwo rows of cells. On the evening in question only 2 cells were occupied before Mr.

Muthuthamby was strip searched prior to beingplaced in his cell. Leaving aside that the cells were largely empty, ODonnell J. notes the fact that a short term releasee such as theaccused, could easily have been accommodated within the cells without the likelihood that he would come into contact with otherprisoners. The design of the 32 Division cells is such that it would be possible to house four strip searched prisoners in the first row ofindividual cells without any realistic possibility that a prisoner who had not been strip searched could have any contact to the otherprisoners.

Application to the Facts in this Case [38] The situation that existed at 6 a.m. on the morning of March 21, 2009 in the cell area of 41 Division is factual verydifferent that what existed in each of these other cases. [39] Sgt. Scriven testified that by 5 a.m. that morning the facility was over capacity. There were more people in custody thanthere were cell spaces available, including the use of the bull pen area. To use his words when confronted with Mr. Aziz shortly after 6a.m. – “he was going into a cell into that situation.” [40] Unlike the officers that testified in each of the other cases, Sgt.

Scriven testified as to the individual assessment heundertook. He had received information about the accused – the charges he faced, the high readings and the information from ConstableWhite that the accused had been un-cooperative. That morning Sgt. Scriven made a decision he would not ordinarily make; it was nothis practice to order strip searches in the case of those charged with impaired driving.

He felt however, constrained that morning, as hecould not guarantee that the accused would not come into contact with other prisoners. [41] Importantly, this was not some hypothetical possibility that the facility might get busy and therefore there exists thepossibility that short term detainees might not be able to be kept separate and prevented from mingling with the “general prisonpopulation.” The situation that existed almost ensured it. [42] The evidence of Sgt.

Scriven was also that although the overriding factor authorizing the strip search was his non abilityto ensure the accused would remain segregated from the other prisoners, it was not the only factor that he considered; his decision wasbased on a constellation of factors. In other words, his decision to order the search was a considered one and one based on the facts ofthe case as opposed to the following of a policy. [43] Sgt.

Scriven was forthright in admitting that “the possibility of not being able to ensure segregation is always present aswe are a central lock up for all of Scarborough” but the fact that he does not routinely order level 3 searches on impaired detainees,suggests despite there always remaining the possibility that he will not be able to ensure segregation of prisoners, he only orders thesearches when the lock up is so crowded that lack of separation is almost ensured; i.e. it is not a policy but based on a case by case

assessment including assessing his ability to keep the different prisoner populations separate. [44] The fluid nature of the lock up is apparent on the record. By 6 a.m. the lock up was over capacity. Mr. Aziz was stripsearched from 6:18-6:24 am according to a “Search of Person Template” that was made out by an arresting officer, exhibit 9. By 7:28a.m. 7 prisoners had been transferred by wagon to court, although some others had arrived. [45] As regard to exhibit 9, it is clear on the evidence that the Template in use at the time of Mr. Aziz’s arrest was not thetemplate as shown on exhibit 9.

It remains unclear whether an electronic version of an updated Template was prepared as is required bythe TPS policy. What is clear is that exhibit 9 is not that form and is something officers can print off – the use of which is separate fromthe booking process. I do not draw any conclusions from the absence of the Search of Person Template. In Conclusion [46] In the factual context of this case, I find that Sgt. Scriven conducted a case specific assessment as to whether a stripsearch of Mr.

Aziz was necessary and that he did so considering relevant factors particular to the accused, his dealings with the police upto that point, as well as considering whether, in the context of an over capacity cell area, he could reasonable ensure that he would notcome into contact with other prisoners. Having come to a reasonable conclusion that the accused could not, and in light of the otherlesser factors he considered, he ordered the strip search. I find he was entitled to do so and there is no

section 8 Charter violation. [47] Before concluding, I would note that limited cell facilities are not an automatic justification for the ordering of stripsearches of everyone who needs to be held in a facility. Golden still requires a case by case assessment on a variety of factors. Further,there is an obligation on the part of the police to attempt to accommodate the short term detainee.

As was stated in Ilnicki and MacLeod,2005 ABCA 349 , [2005] A.J. 1369, the Alberta Court of Appeal found that simply because the accused was going to bedetained briefly in a detention centre, attempts at accommodation apart from other detainees could and should have been attempted. TheCourt held that the police had an obligation to consider ways to avoid that kind of contact, so as to minimize the need for strip searches. [48] As well put by Nakatsuru J. in Samuels, [the accused] had the right not to be treated like other detainees who were goingto be detained in a prison population.

The accused had a right not to be subjected to a humiliating and demeaning strip search unless itwas absolutely essential. [49] In this case, it was. Released: March 1, 2011 Signed: “Justice Robertson”