R. v. K.(V.), 2011 ONCJ 573

COURT FILE No.: Y022129 Citation: R. v. K.(V.), 2011 ONCJ 573 ONTARIO COURT OF JUSTICE Sitting under the provisions of the Youth Criminal Justice Act, BETWEEN: HER MAJESTY THE QUEEN — AND — V.K., a young person Before Justice Heather Katarynych Decision on Strip search Ms. Stacy Siopis .................................................................................................. for the Crown Mr.

Aman Patel .............................................................................. counsel for the defendant KATARYNYCH J.: ISSUE AND CONTEXT V.K. alleges that a strip search conducted of him on the day of his arrest and as part of the booking protocol of Toronto Police Servicesviolated his right to be secure against unreasonable search under s. 8 of the Charter; his right under s. 7 to not be deprived of his libertyand security of the person except in accordance with the principles of fundamental justice; and his right under s. 12 to be shielded fromcruel and unusual treatment.

The Crown seeks dismissal of his claim in this regard, taking the position that there was no Charter breach. Judgment of this claim was reserved after submissions. This is the adjudication and the reasons for it.

ANALYSIS and FINDINGS It is fundamental law that a justifiable use of a police power derived from the common law requires the interference with liberty, whetherit be detention or a body search, to be necessary for the carrying out of the particular police duty, and to be reasonable, having regard tothe nature of the liberty interfered with and the importance of the public purpose served by the interference. Mme Justice L'Heureux-Dube had made that point in Cloutier (see Cloutier v. Langlois (1990), (SCC), 53 C.C.C. (3d)257 at 274-5 (S.C.C.). Justice Le Dain had made the same point in Dedman (see R. v.

Dedman, (1985) (SCC), 20 C.C.C.(3d) 97). The Supreme Court continues to make that point in Golden. Although I considered all the jurisprudence provided by counsel, the pivotal law guiding the adjudication of this particular stripsearch iscontained in R. v. Golden (2001) 2001 SCC 83 , 159 C.C.C. (3d) 449 (S.C.C).

When the issue is stripsearch of a detainee, proportionality and individualized attention are key concepts. Golden is reminder that Charter values require the level of body search of a person in police custody to be proportionate to the need for it. Charter values also require police to take care, in their discretion to choose level of search, that they do not lose sight of the individual who is to be subjected to the search.

It was common ground that the strip search of V.K. was undertaken without the authority of a warrant, and that there was a consequent burden on the Crown to show, on a balance of probabilities, that the search was not unreasonable within the standards required by the Charter. The onus in the hearing of the Charter claim is on the state to rebut this presumption because it is in the best position to know and explain why the search took place and why it was conducted in the manner and circumstances that it did”. See Golden at para 105 .

I have deliberately organized this adjudication around the inquiries required by Golden for adjudication of the validity of the exercise of police power in circumstances of a warrantless strip search incident to an arrest: - 1 . whether there were reasonable and probable grounds justifying the arrest; 2 . whether the search was properly incident to the arrest, in the sense that the purpose of the search is to discover and retrieve evidence related to the alleged crime or weapons on the person of the detainee; 3 . whether there were reasonable and probable grounds justifying the strip search; and 4 . whether the strip search was conducted in a reasonable manner, taking into account the guidance provided by Golden in that regard.

The whole of the evidence presented in the Charter hearing yielded the following findings: - On the Legality of the Arrest In order for a strip search to be justified as an incident to arrest, the arrest itself must be lawful. On the evidence in the hearing relevant to this point, I found nothing unlawful in the arrest of this youth.

On the Search as Incident to the Arrest As a matter of law, police had the right to undertake a search of this youth as an incident to his lawful arrest, provided the search, whatever its level of intrusiveness, was related to the reasons for the arrest itself, and had as its objective, either the recovery and preservation of evidence connected to the alleged crime or the discovery and removal of weapons found on his person ( see Golden , supra, para. 92 ). This was not a search that had, as its purpose, the discovery and preservation of evidence.

It was a search that had, as its purpose, the discovery of anything secreted on the person of this youth that could be used to harm either him or others. In response to the argument of counsel that the alleged “risk” presented by this youth was fanciful, I bore in mind that police need not have reasonable grounds to believe that either such weapons or evidence will be found on the lawfully arrested person at the time that police take the decision to conduct a search of the detainee.

It is the fact that the search of the person is made as incident to a lawful arrest which gives the peace officer the authority to search. ( see Golden at para. 77 ). The need to proceed to more than the pat-down search in search of weapons that had been given this youth incident to his arrest, was tied to the decision of the officers that he would not be released from the station and sent on his way. The decision had been taken to hold him for show cause hearing. The decision to detain him meant that he was about to enter a series of closed environments that police are required to keep safe as well

as secure ; initially within the station itself, then in police transport vehicle and then in the courthouse cells until he could be brought before a justice who would either release him or continue his detention. The safety of detainees and staff who are likely to come into contact with them in the course of the detention is a duty taken very seriously by the officers who testified in this hearing. It was the purpose of the search to ensure that he did not go into that environment with anything secreted on his person that could cause harm to him or any other person with whom he came in contact.

On the whole of the evidence in this Charter hearing, the objective of the search (discovery of weapons) was connected both to the reason for the arrest of him (a complaint of violent crime), and the decision to detain him for show cause hearing. On the Reasonableness of the Grounds for Strip-search in this Case The common law requires reasonable and probable grounds for the level of search selected by the police. The more intrusive the search, the greater the degree of justification needed to hold it within the scope of s. 8 of the Charter ( see Golden , supra at para. 88 ).

I did not need persuasion that strip-searching is one of the most intrusive manners of searching, one of the most extreme exercises of police power ( see Golden at para 89 ). Counsel correctly pointed out that, under Golden, a strip search conducted as a matter of “routine policy”, even if carried out in a reasonable manner, does not render the search itself reasonable within the meaning of s. 8 of the Charter.

A "routine" strip search carried out in good faith and without violence will violate s. 8 (of the Charter) where there is no compelling reason for performing a strip search in the circumstances of the arrest ( Golden , supra at para. 95 ). The message in Golden is clear. It is emphasis that police concerns about safety must be addressed on a case by case basis, and cannot justify routine strip search of all arrestees. See Golden at para. 95 . I was mindful of that. In the end, I did not find this particular decision to stripsearch this youth indicative of a policy of strip-search all arrestees.

It is true that all three officers were particularly emphatic about their responsibility to provide a safe environment for detention, not just for the particular detainee and all detainees for whom they are responsible, but also to those who come in contact with them in the course of their post-arrest detention, whether within the police station, in the transport wagon enroute to court or in the courthouse cells. Their zeal in that regard did not swallow up attention to the circumstances in this case that needed to be brought to bear on their decision- making.

Defence counsel’s argument that police conducted this search as a matter of “routine”; - precisely the attitude and approach that Golden rejects as a reasonable basis for strip-search, - misses important features that give context to their emphasis in this case that strip-search was the proper level of search for this youth. On the evidence as a whole, there were compelling reasons for performing a strip-search in the circumstances incident to this arrest. It began with the reasonableness of the decision to detain this youth at all.

To characterize the decision to strip-search as a mere “routine policy” visited on all arrestees is to overlook what circumstances specific to this youth were part of the repertoire of information animating the decision to detain him at all.

The circumstances of this case, as they were known to police at the time, gave them reason to believe that this youth presented a risk of harm to the complainant. She had reported a robbery of her to police that had allegedly occurred less than 48 hours earlier and in her place of business. She was alleging that she had been held at knifepoint in the course of this robbery. She had made a videotaped statement to police about the robbery and had identified this particular youth as one of the robbers. The seriousness of the complaint and the risk of further harm to the complainant weighed significantly.

It was also a circumstance specific to this youth that on the day of his arrest, he was before the court on three other sets of charges, that certain of those charges also alleged violence towards others and their property and that one charge alleged a breach of recognizance. That reality gave reasonable concern about the safety of the community at large if he were to be released from that station. The fact that these other charges did not concern drugs or weapons, as argued in the defence factum, is irrelevant. Certain of the charges alleged serious crime.

It would have been irresponsible policing to ignore that. The outstanding charges were a factor reasonably considered on the issue of whether there were reasonable grounds to believe that he presented risk in the community if he were to be released from the station on these serious charges. This youth was a stranger to the three officers dealing with him. Although he was cooperative with them, they did not regard that cooperation as assurance that nothing but a pat-down search was needed. That made sense. “Presentation” is a superficial basis at best upon which to assess a stranger’s headspace.

For these reasons, I could not find, as argued by defence counsel, that this youth was subjected to a level of body search that was grossly disproportionate to the need for it, and for reasons that failed to consider his particular circumstances. This was not, on the whole of the evidence, with particular attention to the evidence of the officers themselves, a situation, as argued by defence, driven by a credo that “any person detained presents a risk that can only be contained by a strip search; therefore, lodging in the station cells requires strip search”.

That assertion emerges only if the evidence is stripped of context relevant to a fair

interpretation of police decision to reach to a Level 3 search in this case. I did not find, for example, that police in this case had the charge of robbery as their single focus. It was a prominent consideration, to be sure. They had a report of alleged robbery and an identification of this youth as one of the robbers. I have already noted the other features of this case that were alive in decision-making for this youth. The decision to strip-search was inextricably tied to the decision to detain this youth for show cause.

What loomed large as a focus was the safety of those for whom police are responsible, once a detention decision is taken. As a matter of common sense, police cells and police paddy wagon transport are environments that need to be kept safe. The expectation of safety is no less important to and in relation to this youth than it is for any other person detained in police custody waiting a bail hearing. Golden acknowledges the legitimacy of a reasonably grounded police concern about safety in custody environments.

A thorough searching for anything on the detainee’s person that might be used to harm others is the means by which police try to ensure the safety of all those within the closed environment, including the accused himself. Scrutiny of the evidence of the three officers yielded the finding that the

interpretation argued by defence counsel touches the surface of the evidence, but misses the thrust of the testimony of all three officers. It is true that the officer in charge knew what choice had to be made as soon as he was informed of the charge. He had no reason based on the reputation and experience of the investigating officers, to mistrust the integrity of the investigation and their grounds for charging the youth with robbery. Specific to the Argument about the Adequacy of Patdown Searching I do not read the Golden approach to pat-down search to preclude any more intrusive search of a detainee, if there is need for it related to the safety of the environment to which he is headed.

On the issue of whether a pat-down search was sufficient in this case, I took into account in this regard the following remarks of the Golden court about the duty to balance a detainee's right to privacy against law enforcement concerns: - [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 his person.

Only if a frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified. ... ( Golden , supra, para. 94 ) I note that the context is what will “ generally” suffice. To read the right to further search as dependent on whether any weapon is found in the frisk search is to ignore what follows in the court’s comments: - the attention on the “circumstances of the case” that may “raise risk” of weapon concealed on the person of the accused.

It is that latter concern that is a prominent feature in this case. I note in particular in that regard that the Supreme Court did not focus exclusively on the circumstances of the particular detainee. Its focus was the “particular circumstances of the case ” that “raise the risk that a weapon is concealed on the detainee’s person. See Golden , para 94 . I considered that to be a distinction that cannot be overlooked or blinded by a singular focus on the detainee’s presentation at the time of arrest.

For these reasons, Golden does not suggest, on my read of the court’s commentary about part-down searches that a pat-down search that yields nothing of concern (as was the result of an earlier pat-down search of this youth), is licence to police to ignore other circumstances of the case that do yield concern about the secreting of something on the accused’s person that can be used to harm him or others once he is housed in detention. So it is that Golden allows that what is “generally” sufficient may not be sufficient in the circumstances of the particular case .

Police brought to bear the circumstances of this case on their initial decision-making about the need to detain this youth. Attention to the youth’s presentation is one circumstance. Both officers testified that he was cooperative is his arrest. It was plain that he was wearing “tight” clothing on the day of his arrest. These were features of him. They were not determinative, in the end. It was a circumstance of this case, quite apart from this youth’s cooperation in his arrest, that the arrest itself was rooted in a very recently received complaint of robbery of a woman at knifepoint at her place of business.

It was a circumstance of the case that the complainant feared for her safety. It was also a circumstance of this case that at the time of this arrest, this youth was already before the court on three separate sets of charges, that certain of those charges also alleged crimes of violence and inherent in that, disregard of the safety of the person and property of others. On the Correct Choice of Lens for Viewing Past Conduct Considerable time and attention in this hearing was consumed with what could or should have been done.

Hindsight is not the proper lens for assessing what was or was not reasonable at the time, or to speculate about whether other options might have met the need. The court’s scrutiny of police conduct in relation to their choice of search requires a lens fixed on the circumstances that were apparent – or not – at the time that the officers were called upon to make the decision to hold this youth for show cause hearing. A Charter hearing is neither time nor place for Monday morning quarter-backing.

The careful attention of counsel to what “could” have been done is not synonymous with what would or should have been done or what was done. The heart of the analysis is whether what was done was both proportionate to the need and took into account this particularly youth (as opposed to a blanketing of him within all arrestees or any other arrestee).

There was good reason, on the information known at the time, for police to hold this youth for show cause. Both his needs and the needs of others in the closed environments that he was about to enter called for the next step: assurance that he had nothing on his person that could be used to cause harm. It was, in short, a concern about safety; safety of him while he was in detention, safety of others with whom he might come into contact, and the safety of the police themselves that animated this particular stripsearch.

I took into account the message of Golden that the mere possibility that an individual may be concealing weapons upon his person is not sufficient to justify a strip search ( see Golden , para 94 ). with particular attention to the context for the commentary on that point. Police in this case had sufficient information to provide reasonable belief that weapons not detected in pat-down search might be secreted on those parts of his body accessible for inspection only through a strip-search.

It was more than “mere possibility” in the circumstances known at that time in the case, including the reality that the youth was not already known to any of them. It was a “better to be safe than sorry” stance that was rooted in the circumstances of the case. It is worthwhile to note in this regard that the majority court in Golden distinguishes between strip searches immediately incidental to arrest (as in the case of Golden ) and searches related to safety issues in a custodial setting.

The majority judgment explicitly acknowledges “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”. See Golden , para 96 . This distinction is important when considering the circumstances of this case. V.K. was on the cusp of his entry into the prison environment. V.K.’s features did not get lost in the decision-making. He was a stranger to the officers who arrested him and a stranger to this particular booking officer.

The features in his presentation that counsel most wanted to prevail, including his cooperation in his arrest and the absence of any weapon found in pat-down search, and his youthfulness (he had just turned 18 years of age), were simply not determinative in the decision-making. There was justification for ensuring before that happened, that he had nothing secreted on him that could be used to harm him or others. All of the officers had formed their belief about safety concerns from their experience in policing; - an experience that was considerable.

It was not a spectre of foreboding and fear, absent grounding in features particular to this particular case, that drove the decision-making of the officers about the need for the strip-search. The thoroughness of a search mattered to these officers. All of them acted in a genuinely held belief that a strip search was the only meaningful and responsible way to ensure their own safety, the safety of the young person and others in custody with whom he would come in contact until his release. That belief was objectively justified on the whole of the evidence relevant to the circumstances of this case.

It was in their discretion, within the procedure and policy of the Toronto Police established to reflect the requirements of Golden , to inspect the genital and anal area of this youth’s body. In their experience, items that cause harm can be secreted in those areas of the body. So it was that I found that this particular strip-search did not fall into the category of a “routine strip search of all arrestees” or even “all detainees”. The evidence satisfied me on a balance of probabilities that there were compelling reasons for performing this strip search in the circumstances of this particular case.

On whether this Search was conducted in a Reasonable Manner I gave the youth’s evidence particularly close attention on this issue. He testified that he was treated abusively in this strip-search. Counsel urges me to accept as reliable the youth’s version of events, in light of the inability of the officers to refresh their memory about specifics of this search that counsel wanted to explore with them. Counsel urges the court to find their note-taking a breach of the

“requirements” of Golden and the “requirements” of the Toronto Police directives relevant to both notetaking and stripsearching. I had that in mind throughout my scrutiny of the evidence relevant to the manner of this particular search. I found the following “reasonableness” in the spirit of the Golden guidelines, in the manner in which this search was conducted: - It was conducted at the police station, in the privacy of a room adjacent to the booking room, and immediately after the parading of the youth. It was authorized by an officer who was acting in a supervisory capacity.

The videotape of the booking that is in evidence in this Charter hearing is testament to the care taken by this officer to explain the unfolding of the process that awaited the youth and the reasons for it, and the respect in his manner. The interaction of both officers throughout the booking was business-like and calm. There was no indication of intimidating conduct on the part of any of the three officers. Although the youth testified to feeling intimidated by the officers. I found that in the end that none of the three officers acted in a manner that was intimidating.

I did not view any “squeezing” of this youth’s arm by either officer presenting him to the booking officer, and I looked with particularly close scrutiny at the physical contact of both officers with this youth in light of his complaint about that in his own testimony. The search itself was conducted by the same two male officers who had paraded him. No person other than the two officers and the youth were in the room during the search. There was no audio or video recording of the search. Contrary to the submissions of defence counsel, the search room was not dark.

The light was slightly dimmer than the glaring light of the booking room, but it could hardly be characterized as darkness. From what I could see on the videotape, the search room was not “filthy”. Two items visible on the floor appear to be crumpled paper. The officers frankly acknowledged in cross-examination that neither of them had washed down the room before bringing the youth in for the search, nor was there anything in the room’s condition that appeared to them to call for that. One officer pointed out that the building is old, and things are not as spiffy as one might like.

The youth found the state of cleanliness not to his liking. In the end, I found his evidence on the state of the room reflective at best of a particular sensitivity about cleanliness that had exaggerated the actual state of the room. The officers worked in partnership to accomplish the search tasks in a manner that minimized the time needed to conduct the search.

Both officers displayed both in the tone and the content of their evidence an appreciation that strip searches are inherently humiliating and degrading for detainees, and pointed to practices that they had built into their work in this regard to try to minimize the humiliation. Among those practices was the step by step removal and return of clothing, to the extent possible, to enable the person being searched to be at least partially dressed during the search. The youth himself was permitted to remove each item of clothing for the inspection and hand it to the officer.

He did not suffer the indignity of having either of the officers undress him. This was not a drawn-out exposure to indignity. The entire search lasted less than six minutes. The exposure of the most intimate regions of the bodies for inspection by police was brief, and he himself, on direction from the officer,

exposed his genital and anal area for inspection. There was no other physical handling of him or his body parts, except the holding of his arm on entry and exit. Neither officer touched the private areas of his body during the search. The inspection of the genital and anal area was visual. No one touched him. The search was not viewed by anyone other than the officers conducting it. The youth’s testimony that someone might have looked in through a window in the door was not borne out by the evidence as a whole.

No person peered through the small window of the room’s door to take a glimpse of this youth at any stage of the search. Someone many have walked by. The youth testified that he saw a sideview of someone passing by the window. I did not find on the whole of the evidence that either officer interfered with his freedom of movement. I did not, in the end, find credible the youth’s evidence that the officers had had him manipulate his genitals excessively, or that he was physically moved when he tried to shelter himself from exposure to anyone who might look through a window in the room door.

The fact that two officers coordinated their efforts in such an organized fashion likely reduced the time needed to carry out the search. There was no credible evidence that either of the searching officers engaged in commentary with him during the search that intimidated or denigrated this youth. In this regard, I did not find reliable the testimony of the youth that the officer intimidated him. I do accept, however as a matter of common sense, that the experience of being search is intimidating, even when the searching officers are trying to manage it in a respectful and sensitive manner.

The youth left the search room fully clothed and into the immediate presence of the booking officer who had been there when he had been taken into the adjoining room for the search. On close scrutiny of the videotape, there was no sign of trauma as he was led out of the search room or the booking room. Specific to the “Note taking” Issue I gave careful attention to defence counsel’s submissions on the inadequacy of the officers’ note-taking in respect of this particular search. Neither officer had detailed the search process in step by step fashion.

Both officers had a standard practice for these searches and made notes only if anything in the unfolding of the search veered off their standard practice. Defence counsel argued that this approach falls far short of the Golden requirement that officers make a “proper” record of the reasons for and the manner in which the strip search was conducted. The paucity of note-taking in relation to the search did leave both officers unable to refresh their memory about what actually unfolded in the search, and I took that into account in assessing their credibility.

Both officers were adamant that the absence of remark in their notes about the unfolding of the search meant that there was nothing out of the ordinary in this search that called for remark. Both described the unfolding of an uneventful search; - the involvement of the detainee himself in the removal of his clothing, one item at a time, with a return of the item of clothing to the detainee immediately after inspection, unless the item was being held (for example, no immediate return of his pants because the underpants still had to be inspected and the genital and anal area of the body).

It went according to their standard practice. It was not the part of the practice to leave the person search stark naked, and the officers were adamant that it did not happen in this case.

On the whole of the evidence, taking into account the youth’s testimony that he was stark naked for a time, there may have been a period of nakedness if the youth did not put his shirt back on when it was handed to him. He himself took off the items of clothing in step by step fashion, beginning with his shirt. What could be returned to him immediately after search was returned, notably the shirt. Whether he put it on immediately is not clear on the evidence. It was not a nakedness deliberately choreographed by the officers to demean him.

The note-taking practice of these officers may not be the optimum way to notate a strip-search, but I did not find it determinative of the reasonableness of the search, for essentially the following reasons: The Golden list is a guide, one of eleven considerations adopted by the Golden majority court from Britain’s legislation on strip-searches to provide a “framework for police in deciding how best to conduct a strip-search incident to arrest in compliance with the Charter”. See Golden at para 101 . It is not legislated law.

The guideline does not suggest that the sort of note-taking argued by counsel as “proper” is the bar to be met. An officer’s notetaking is not done with the needs of defence counsel in mind. It is the officer’s aid. These officers have developed a process for themselves that focuses on unusual events in the search, should they emerge, not in what unfolds in routine fashion. In the end, a failure to heed one of a number of guidelines provided by the Golden court to assist police did not translate to Charter breach. On the whole of the evidence, I found the manner of conducting the search reasonable.

In relation to the youth’s claim of breach of s. 12 of the Charter, the strip search was neither "treatment" nor "punishment". This particular strip search was a necessary and reasonable inspection of this youth’s body. Loss of privacy is an inherent incident of confinement. Search designed to keep the place of confinement safe is not punishment. For all the foregoing reasons, I found no breach of any of the Charter rights claimed in his application in relation to this particular strip- search of him on the date of his arrest His Charter claims in relation to the strip-search issue are accordingly dismissed.

This decision is to be released to counsel today. ____________________________ H. L. Katarynych Trial Judge Released October 14, 2011