COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Muller, 2014 ONCA 780
DATE: 20141107
DOCKET: C55377
Feldman, Watt and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Bart Alec Muller
Appellant
Heather Pringle, for the appellant
Stephen Dawson and Jeanette Gevikoglu, for the respondent
Heard: June 19, 2014
On appeal from the conviction entered on October 17, 2011 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting without a jury, with reasons reported at 2011 ONSC 4892.
Watt J.A.:
[1] Bart Alec Muller got arrested. And then he got searched. Twice. First, a frisk search. Three cellphones. Some money. No drugs. Second, a strip search. A plastic bag between his buttocks. Crack cocaine. Cocaine. Oxycodone tablets.
[2] At trial, Muller challenged the lawfulness of his arrest, the reasonableness of the strip search and the admissibility of the drugs and other items the searches yielded.
[3] The trial judge concluded Muller’s arrest and strip search were lawful, unblemished by constitutional taint, and the evidence obtained as a result admissible. She convicted Muller of the offences charged.
[4] Muller appeals. He reiterates the complaints he advanced at trial. The warrantless arrest was arbitrary and unlawful. The strip search was unreasonable, or at the very least, executed in an unreasonable manner. The evidence of the items seized should have been excluded.
[5] This time, Muller succeeds. Although the warrantless arrest was lawful and the authority to conduct a strip search established, the manner in which the strip search was carried out fails constitutional muster. The evidence the strip search yielded should have been subjected to a s. 24(2) analysis to determine its admissibility.
THE BACKGROUND FACTS
[6] The circumstances in which Muller was arrested and searched are not controversial. A brief statement of them will suffice.
Biggie and his Business
[7] Two confidential informants told police about a man they knew as Biggie who sold crack cocaine out of a second floor apartment in a Windsor apartment building. The apartment belonged to another man they knew as Peter, who let Biggie sell drugs out of the apartment in exchange for some of Biggie’s drugs. The informants explained a prospective purchaser was to knock on the sliding door of a ground floor apartment to get access to Biggie’s place of business. The information provided included the municipal address of the apartment building and the number of each of the apartments. The information was also current – one of the informants had bought drugs from Biggie earlier in the day the information was provided to police.
[8] Both informants had criminal records. No details of those records were provided, except that neither had been convicted of perjury or misleading police. One was unproven. The other was “proven reliable and accurate”, but no basis for this assertion was provided. Each was an admitted drug user and “well-versed in the drug subculture”.
[9] The informants described Biggie as a big black man, six feet tall, with a large build. Biggie had short brown hair in braids. He weighed about 240 pounds. One informant, the one whose information had proven reliable and accurate in the past, told police Biggie had bought a handgun for protection. The informant had not seen the gun.
[10] Police identified Poitr Kochanski as the person who leased unit 204 at 373 Detroit Avenue in Windsor, the apartment where the informants had purchased drugs from Biggie. Kochanski, who matched the informants’ description of Peter, had prior criminal convictions and was the subject of an outstanding warrant obtained by an out-of-province police agency. None of Kochanski’s prior convictions were drug-related.
The Search Warrant
[11] On the basis of the information provided by the two informants, police obtained a search warrant under s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), for apartment 204 at 373 Detroit Avenue. They sought drugs and related items in the apartment in which Biggie had trafficked crack cocaine that day and on earlier occasions. The warrant was to be executed the same day with the assistance of the Emergency Services Unit of the Windsor Police.
The Execution of the Warrant
[12] Shortly after 5 p.m., police broke down the door and entered apartment 204. They found four people in the apartment, but no drugs. The occupants included Kochanski and three other building residents, including two from apartment 107, the unit the informants identified as the one to knock at for access to Biggie’s place of business. Each occupant was arrested. Everybody was transported to police headquarters to be strip searched.
[13] Biggie was not in the apartment.
Is This Biggie?
[14] As the search warrant was being executed, police officers conducting surveillance outside the building noticed a man walk out of the building through a pedestrian exit. The man fit Biggie’s general description: a six foot tall black man with a large build. The door by which he left was not far from apartment 204. The officers, whose clothing clearly identified them as police, got out of their vehicle and approached the man on foot. As they did, the man discarded a digital scale and continued to walk away. One of the officers picked the scale up. He noticed a residue on the scale resembling crack cocaine.
The Arrest and Frisk Search
[15] When the officers caught up with the man they asked him for identification. The man identified himself orally. He had no documentary proof of his identity with him. He was arrested on a charge of possession of crack cocaine for the purpose of trafficking and advised of his right to counsel.
[16] Incident to his arrest, the officers conducted a frisk search of the man. They found three cellphones and some money, but no drugs, debt lists or any other common indicia of drug trafficking.
[17] The officers concluded this man was Biggie. They thought he was trying to hide something from them. One of the officers decided Biggie should be taken to police headquarters to be strip searched.
The Strip Searches
[18] At police headquarters, two male police officers strip searched Muller. They asked him to remove the items of clothing he was wearing, one by one, and turn them over to the police. He did so. As Muller stood naked before the officers he was asked to turn around, “bend over and spread his butt cheeks.” He complied.
[19] When Muller bent over, one of the officers noticed a plastic bag concealed between Muller’s buttocks. Another bag was visible inside the outer bag. The officer removed the bag from between Muller’s buttocks. Inside the bag the officers found crack cocaine, cocaine and a dozen oxycodone tablets. The search was videotaped and the recording preserved.
[20] The strip search of the four persons found in apartment 204 yielded nothing. These searches, which had been directed by an officer before the search of the apartment had been completed, were carried out at police headquarters. Police notebooks contained no reference to any strip search direction or the execution of any strip search for these persons. These strip searches took place after Muller had been strip searched and the drugs found. The video of these strip searches was not preserved.
THE GROUNDS OF APPEAL
[21] The appellant advances three grounds of appeal. Ms. Pringle says the trial judge erred:
i. in finding the warrantless arrest of the appellant was based on reasonable grounds, and thus lawful;
ii. in finding the strip search of the appellant was based on reasonable grounds, and thus lawful; and
iii. in finding the strip search of the appellant was conducted in a reasonable manner.
Ground # 1: The Lawfulness of the Warrantless Arrest
[22] The first ground of appeal impeaches the trial judge’s conclusion that the warrantless arrest of the appellant was lawful. The trial judge based her conclusion on the cumulative effect of:
i. the information supplied by the two confidential informants and contained in the Information to Obtain (ITO) relied upon to obtain the CDSA search warrant for apartment 204; and
ii. the observations of surveillance officers of the appellant’s exit from the apartment building and his conduct prior to arrest.
The Information
[23] The information contained in the ITO was provided by two confidential informants. For all practical purposes, the significant features of this information, including the antecedents of the informants and their reliability, were unconfirmed.
[24] From these informants, the police knew a man known as Biggie was trafficking crack cocaine in apartment 204 at 373 Detroit Avenue. The tenant, known as Peter to the informants, knew about Biggie’s business and received drugs for making his premises available for this purpose. The police did not know Biggie’s real name and had only a general description of him: a tall and heavy black man with braided hair.
[25] The informants also told police that to buy drugs from Biggie in apartment 204 a person would knock on the sliding door of a ground floor apartment, unit 107, to gain entry to the building. Together, the information provided by the informants disclosed several discrete transactions including one that occurred only a few hours before the CDSA search warrant was issued.
[26] Prior to the appellant’s arrest, police obtained further information. Surveillance officers – posted outside 373 Detroit Avenue to ensure persons did not escape by, or throw drugs off of, the balcony of unit 204 – noticed a man leave the building by a side door. This was at the very time other officers, executing the search warrant, had forced their way into apartment 204. The man fit the description of Biggie. As the officers approached him on foot, the man discarded a digital scale. Convinced the man was their target, Biggie, the officers arrested him.
The Ruling of the Trial Judge
[27] The trial judge concluded the information provided by the confidential informants and included in the ITO, on its own, was not sufficient to satisfy the standard required for:
i. issuance of a search warrant for apartment 204; or
ii. a warrantless arrest of the appellant.
[28] In her ruling on the constitutionality of the strip search, the trial judge expressed her conclusion about the legality of the appellant’s arrest in these terms:
[51] In the end result, the tips had some level of detail. However, the credibility of the sources was not established and there was no meaningful confirmation of the information provided. The warrant was based on unsubstantiated tips from one person of unknown reliability and another of undisclosed reliability. The grounds did not justify issuance of a warrant to search a residence. Nor did those grounds suffice to make out the requisite reasonable grounds for arrest.
[29] The trial judge then considered whether the appellant’s arrest and incidental frisk search could be lawful on other grounds, in particular, on the basis of the observations made by the surveillance officers. They observed the appellant leave the building as the search began and discard a digital scale covered with what appeared to be cocaine residue. She described the relevant question this way:
[56] The question then is whether there were grounds to believe that the accused was in fact the man described as Biggie. It is true that there are some discrepancies between the description of Biggie offered by the sources and the physical appearance of the accused at the time of his arrest. The description of Biggie was set out in the briefing note as follows:
TARGET: Biggie – male black, 20s, 6’tall, 220 pounds, large build, short brown hair, braids.
[30] Ultimately, the trial judge concluded the appellant’s arrest was “lawful and reasonable”. The essence of her reasons is found in the following passages:
[59] The defence relied on Chartier v. Quebec (A.G.), [1979] 2 S.C.R. 474 in arguing that there were insufficient grounds for arrest. This case is distinguishable from Chartier. Here, the arrest is based, not just on physical description, but on the accused’s presence at the scene of the crime. The accused was not just a random male who happened to be leaving an eight story building where drugs were sold. The accused matched several descriptors given of Biggie. He left the building from an exit in close proximity to apartment 204 at the very time or shortly after ESU officers entered the unit. He was in possession of a digital scale which he discarded – a strong indication that he was involved in the drug trade. When these circumstantial observations are combined with the physical description, it becomes very reasonable to believe that the accused was Biggie. The standard is one of reasonable grounds to believe, not proof beyond a reasonable doubt and not a prima facie case. It was reasonably probable that the accused was Biggie. It was not necessary that it be established to any greater certainty.
[60] Therefore I have concluded that the arrest of the accused was lawful and reasonable on the basis of:
a) The grounds set out in the ITO;
b) The physical similarity between the accused and the description of Biggie;
c) The timing and location of the accused’s departure from the building; and
d) The accused’s attempt to discard a digital scale as he moved away from the police.
[61] The cumulative effect of these factors are such that the arrest of the accused for possession of crack cocaine for the purpose of trafficking was lawful.
The Positions of the Parties
[31] For the appellant, Ms. Pringle says the appellant’s arrest was unlawful. She submits the trial judge reached the wrong conclusion because she asked the wrong question. The question was not whether the police had reasonable and probable grounds to believe the appellant was Biggie, but rather, whether there were reasonable and probable grounds to believe the person they saw was in possession of crack for the purpose of trafficking.
[32] Ms. Pringle contends the onus was on the Crown to establish the reasonable and probable grounds required to make this warrantless arrest lawful. The evidence, she says, comes up short. The timing of the appellant’s departure from 373 Detroit Avenue was neutral because there was no link to apartment 204. The discard of the digital scale was not enough, on its own, to get beyond reasonable suspicion. The similarities between the appellant and the man described as Biggie were generic at best and there were significant discrepancies between the informants’ description and the appellant’s appearance.
[33] The respondent insists the trial judge made no mistake in her analysis or conclusions that both the arrest and incidental search were lawful. The arresting officer was required to believe on reasonable grounds that the appellant had committed or was about to commit an indictable offence. The standard of “reasonable grounds” is not equivalent to “proof beyond a reasonable doubt” or even “a prima facie case”. The standard is one of reasonable or credibly-based probability.
[34] The respondent says the cumulative effect of all the information known to the police prior to the appellant’s arrest supported an objectively reasonable belief that the appellant was in possession of crack cocaine for the purpose of trafficking. The appellant – fitting the description of Biggie, who had trafficked crack in unit 204 earlier that day – was seen leaving the building just as the search of that apartment began. As uniformed police approached, he discarded a digital scale covered in a cocaine-like residue. Accordingly, the arrest and search incident to the arrest were lawful.
The Governing Principles
[35] Section 495(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, permits a peace officer to arrest, without a warrant, a person:
(i) who has committed an indictable offence; or
(ii) who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.
[36] Where the basis for the arrest falls within category (ii) above, the arresting officer must subjectively have reasonable grounds on which to base the arrest. However, that on its own is not enough to make the arrest lawful. In addition, those grounds must be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude there were indeed reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 251; R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 20, leave to appeal to S.C.C. refused, [1997] S.C.C.A. No. 571.
[37] Whether information provided by an informant can constitute reasonable grounds for an arrest requires consideration of the totality of the circumstances: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-219, aff’d [1989] 2 S.C.R. 1140, at p. 1168; R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 15. Where the information originates in a source outside the police, the totality of the circumstances encompasses factors relevant to either the accuracy of the specific information provided or the reliability of the informant as a source of information to the police: Lewis, at para. 16. In this case, the allegation relates to possession of drugs. It follows that the totality of the circumstances must raise a belief, on reasonable grounds, that the target had committed or was about to commit the offence of possession of drugs for the purpose of trafficking, not as Ms. Pringle asserts, that the target was at the time of the arrest in possession of drugs.
[38] A search incident to arrest derives its authority from the lawful arrest and requires no independent justification, either at common law or under the Canadian Charter of Rights and Freedoms: Golub, at para. 31; Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 185-186. Breaking this down, for a search to be justified as an incident to arrest, the arrest itself must have been lawful and the search must have been incident to the arrest, meaning the search must have related to the reasons for the arrest itself: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 91-92, 98; R. v. Caslake, [1998] 1 S.C.R. 51, at para. 17.
The Principles Applied
[39] I would not give effect to this ground of appeal.
[40] I agree with the trial judge that the information provided by the confidential informants, on its own, was not sufficient to satisfy the reasonable grounds standard in s. 495(1)(a) to lawfully arrest the appellant without a warrant. Admittedly, the information was somewhat specific – Biggie was trafficking crack cocaine in apartment 204 at 373 Detroit Avenue in Windsor, in an apartment belonging to Peter – and was only hours old, according to one informant. The information also included a general description of Biggie. However, the information came from one untested source and another that was unverifiable. Neither had been confirmed in any meaningful way.
[41] That said, the information from the confidential informants did not stand alone. A man who fit the general description of Biggie, the crack trafficker who hours earlier had made a sale in apartment 204, walked out of the building just as a CDSA warrant was being executed in that very apartment. When uniformed officers approached, this same man discarded a digital scale covered with a residue resembling crack cocaine.
[42] In combination, the information provided by the informants, coupled with the observations made of the appellant’s behaviour, met the standard imposed by s. 495(1)(a) of the Criminal Code. I reach this conclusion even though the trial judge appears to have asked the wrong question as she began her analysis. The proper issue was not whether the police had reasonable grounds to believe the pedestrian was Biggie, but rather, whether they had reasonable grounds to believe the pedestrian had been or was in possession of drugs for the purpose of trafficking.
[43] The lawful arrest of the appellant permitted the police to conduct a frisk search of him incidental to the arrest. In this case, the frisk search was incidental because it related to the reasons for the arrest. The arrest was for the possession of drugs for the purpose of trafficking. The purpose of the frisk search was to discover evidence of the offence: drugs or drug paraphernalia on the appellant’s person: Golden, at para. 92; Golub, at para. 28; Caslake, at para. 17; Cloutier, at p. 186.
Ground #2: The Lawfulness of the Strip Search
[44] The second ground of appeal challenges the authority of investigators to strip search the appellant at the police station after his arrest and incidental frisk search. Some additional background is essential to assessing the validity of this claim of error.
The Decision to Strip Search
[45] When the frisk search yielded no drugs or other paraphernalia unique to drug traffickers, the investigating officer decided the appellant would be strip searched and directed he be taken to police headquarters for that purpose.
[46] The arrest and frisk search of the appellant added a few details to the then-existing knowledge of the police. The appellant had three cellphones. He also had some cash, but not a significant amount. He had a key, but not to apartment 204. He had discarded a digital scale covered with a white residue resembling crack cocaine. The appellant told police his name and date of birth. He refused to say where he lived. He had no documents with him confirming his identification or disclosing where he lived. There were no drugs and no debt list.
[47] The appellant was not the only person whom the investigating officer directed be strip searched that day.
[48] When police executed the search warrant in apartment 204, they found four people. None resembled Biggie. All four were arrested on charges of possession of cocaine for the purpose of trafficking. The decision that they be strip searched was made before the apartment was searched. Police found nothing associated with drug trafficking in the apartment. All four lived in the building, including the tenant of apartment 204 and two others who lived in apartment 107, the unit an informant connected to the trafficking in apartment 204. After they were strip searched, all four were released. The police found no drugs or drug paraphernalia. No charges were laid.
The Ruling of the Trial Judge
[49] The trial judge recognized “a higher degree of justification” was necessary to ground a strip search than was necessary to justify an arrest and incidental frisk search. She identified four circumstances on which the decision to strip search was based:
i. the accused discarded a digital scale, signalling he was trying to conceal material from the police;
ii. the frisk search did not reveal evidence of drugs;
iii. the frisk search did reveal money and three cell phones, further enhancing the officers’ grounds to believe the accused was involved in the sale of drugs; and
iv. the accused was evasive during his arrest, refusing to produce identification or provide an address.
[50] The trial judge concluded the evidence established the grounds necessary to permit a lawful strip search. She expressed her conclusion in these terms:
[64] In these circumstances, the officer believed that the accused was trying to hide something from him. The evasive manner of the accused, together with his earlier attempt to dispose of evidence, offered some basis for believing that he might have taken steps to conceal evidence of the offence. I am satisfied that this is the type of situation in which the intrusiveness of a strip search was justified as a search incident to arrest. It will be rare for the police to know with certainty that evidence is actually concealed in a person’s clothing. Where there is cogent evidence that the person is selling drugs, that he is carrying the tools of the trade on his person, that he has tried to dispose of or conceal other material evidence, and no drugs are found during a pat-down search, there is a sufficient basis to search the inside of the person’s clothing.
The Positions of the Parties
[51] For the appellant, Ms. Pringle contends the trial judge erred in finding the requisite grounds to justify a lawful strip search of the appellant had been established on the evidence adduced at trial.
[52] Ms. Pringle says the trial judge’s first misstep occurred at the outset of her analysis when she failed to begin from the premise that the warrantless strip search was unreasonable. Thereafter, the trial judge combined neutral factors (possession of cellphones), misapprehensions of evidence (the appellant’s refusal to identify himself), and a negative factor (failure to find drugs on the frisk search) as positive evidence sufficient to justify a strip search to look for drugs. This combination, Ms. Pringle submits, simply cannot ascend to the level required to permit a strip search.
[53] For the respondent, Ms. Gevikoglu submits the decision by investigators to strip search the appellant was reasonable in the circumstances and the trial judge was correct about its lawfulness. The appellant was lawfully arrested. The frisk search was lawful, having as its purpose the discovery of evidence of contraband or other drug paraphernalia. That was equally the purpose of the strip search, the grounds for which were influenced by the failure to find contraband on a frisk search of a person who had recently sold crack and attempted to dispose of the tools of his trade. The items found – money and several cellphones – as well as the appellant’s refusal to produce identification or provide an address, solidified the grounds required to justify the strip search.
The Governing Principles
[54] Different types of searches raise different constitutional considerations: the more intrusive the search, the greater the degree of justification and constitutional protection appropriate: Golden, at para. 88; R. v. Simmons, [1988] 2 S.C.R. 495, at p. 517.
[55] Section 8 of the Charter has as its purpose the protection of individuals from unjustified state intrusions on their privacy. It follows that we must have some means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred in the first place: Golden, at para. 89; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160. The importance of preventing unjustified searches before they occur is especially acute for strip searches. They involve a significant and direct interference with personal privacy and can be humiliating, embarrassing and degrading for those subjected to them: Golden, at para. 89.
[56] Where a strip search is justified as an incident to arrest, the arrest itself must be lawful: Golden, at para. 91. The search must also be incident to the arrest. In other words, the search must be related to the purpose of the arrest: Caslake, at para. 17; Golden, at para. 92. In this case, the arrest was for drug trafficking, more accurately, possession of drugs for the purpose of trafficking. It is to that purpose the strip search had to relate.
[57] The reasonableness of the search for evidence, including the reasonableness of the strip search, is governed by the need to preserve evidence and prevent its disposal by the arrested person. Where arresting officers suspect the arrested person may have secreted evidence on areas of his or her body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in all the circumstances: Golden, at para. 93.
[58] The mere possibility that an individual may be concealing drugs on his or her person is not sufficient to justify a strip search of that person: Golden, at para. 94. Further, strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within s. 8 of the Charter. Compelling reasons, rooted in the circumstances of the arrest, are required to render a strip search reasonable, even where the execution is flawless: Golden, at para. 95. Rote application of police policy is anathema to the case-specific, fact-sensitive consideration mandated by Hunter v. Southam Inc.
[59] The fact that police have reasonable grounds to arrest a person without warrant under s. 495(1)(a) does not, on its own, clothe them with automatic authority to carry out a strip search. This is so even where the strip search qualifies as incidental to a lawful arrest: Golden, at para. 98. Something further relating to the purpose of the strip search is required. That something further is that the police must have reasonable and probable grounds for concluding a strip search is necessary in the specific circumstances of the arrest: Golden, at para. 98.
[60] The serious infringements of privacy and personal dignity that are inevitable consequences of strip searches require that, to be constitutionally valid, the strip search must be:
i. conducted as an incident to a lawful arrest;
ii. conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;
iii. based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; and
iv. conducted in a reasonable manner.
Golden, at para. 99.
The Principles Applied
[61] I would not give effect to this ground of appeal.
[62] The strip search of the appellant occurred shortly after his lawful arrest and a lawful frisk search incidental to that arrest. The frisk search yielded no drugs or drug paraphernalia, such as packaging materials or debt lists. The appellant had three cellphones, which reinforced suspicion that he was a drug dealer. Police also recovered a digital scale discarded by the appellant just prior to his arrest. A residue of a white powder resembling cocaine was visible on the scale’s surface.
[63] The decision to conduct a strip search of the appellant was made at the scene of the appellant’s arrest. The search of apartment 204, the reported site of the appellant’s trafficking activities, had not been completed. Thus, the results (no drugs) had not been communicated to those who arrested the appellant.
[64] The critical issue for the trial judge was whether the investigators had the grounds necessary to conduct a strip search of the appellant for the purpose of discovering evidence relating to drug trafficking. This depended on whether police had reasonable and probable grounds to believe a strip search was necessary in the circumstances of the arrest: Golden, at para. 99.
[65] The trial judge relied on the cumulative effect of several items of evidence to conclude the grounds necessary for a lawful strip search had been established:
i. discarding the digital scale, which signalled an attempt to conceal evidence of drug trafficking from the police;
ii. failure to find any drugs on the frisk search;
iii. finding money and cellphones on the frisk search; and
iv. the appellant’s evasive conduct in refusing to produce identification or provide an address when asked on arrest.
[66] The appellant contends that, at least three of the factors relied on by the trial judge are problematic.
[67] First, there was the fact that no drugs were found on the frisk search, which the appellant contends raised no more than a mere possibility that the appellant might have been concealing evidence on his body: Golden, at para. 94. The evidence of the arresting officer was that he had experience with drug dealers concealing crack cocaine “in their underwear or in their butt cheeks”. Whether this alone amounted to a possibility or something more is not the issue. It was a factor that could be taken into consideration, together with all of the circumstances known to the officer, in determining whether there was a reasonable prospect that the strip search would reveal evidence: Caslake, at para. 22; Golden at para. 93.
[68] Second, the appellant asserts that the fact that three cellphones and a small quantity of cash were found adds little to the analysis. Again, I disagree. The trial judge accepted the evidence of the arresting officer, that, in his experience, the presence of multiple cellphones was consistent with drug trafficking.
[69] Third, the appellant contends that the trial judge either misapprehended the evidence about the circumstances in which the appellant identified himself to arresting officers or mischaracterized its nature. The appellant told police his name and date of birth. After caution and Charter advice, he declined to provide his address and said he had no identification with him, an assertion established as true through the frisk search. I would agree that such conduct was not relevant to the legality of the strip search.
[70] The appellant also submits that the trial judge accorded no weight to the evidence of the investigators who testified about the extremely low probability of a strip search yielding evidence of contraband on the body of the person searched. The evidence was that it was commonplace for crack cocaine traffickers to conceal crack cocaine in their buttocks or underwear. And it was acknowledged in cross-examination that the frequency of finding drugs after a strip search of someone arrested for crack cocaine trafficking was only 7.5%.
[71] In Golden, the court referred to an officer’s testimony that he had found evidence hidden in an individual’s private parts in only 5% of the more than 200 arrests he had made for dealing in crack cocaine. Nevertheless, the court noted that, although the prospect of finding drugs was “quite slim”, “there was some evidence suggesting the possibility of concealment of narcotics”: Golden, at para. 111. The court concluded that, “taken together, [the] circumstances would have been sufficient to create reasonable and probable grounds to conduct a strip search of the appellant at the police station”. It follows that the evidence of the officers about the percentage of cases in which drugs might be found after a strip search of someone arrested for trafficking crack cocaine was a relevant, but not determinative factor for the trial judge to consider.
[72] The factor that is and was problematic, as the treatment of those found in the apartment attests, is that it appears to have been a routine policy of the investigators in this case to strip search anyone and everyone charged with possession of drugs for the purpose of trafficking. As Golden teaches, strip searches conducted as a matter of routine policy, even if carried out in a reasonable manner, offend s. 8 of the Charter.
[73] That said, the trial judge was required to consider all of the circumstances that existed at the time of the arrest of the appellant in determining whether the arresting officer’s decision to strip search the appellant at the police station was justified on reasonable and probable grounds. In my view, there was no error in the trial judge’s conclusion that the investigators had the requisite authority to conduct a strip search of the appellant incident to his arrest for evidence of his possession of crack cocaine for the purpose of trafficking.
Ground #3: The Reasonableness of the Manner of the Strip Search
[74] The final ground of appeal focuses on the manner in which the appellant’s strip search was carried out. Some further details about the manner in which the search was executed are essential to evaluating the merits of this claim.
The Circumstances of the Search
[75] The strip search of the appellant was carried out by two officers of the same gender as the appellant in a room used for strip searches at Windsor Police Service Headquarters. The search was videotaped. Contrary to the usual practice, the door to the room was left open while the search was conducted. This left the appellant, who faced the door, visible to anyone who passed by. The strip search could also be viewed electronically by others working on a nearby bridge. There were no rules in place governing access to the videotape of the search. The appellant was directed to remove one item of clothing at a time and hand it to one of the officers. In the result, as the last article of clothing was removed, the appellant was left naked facing the doorway.
[76] The officers directed the appellant to “spread his butt cheeks.” When he complied, a plastic bag was clearly visible. Without asking the appellant whether he wished to remove the bag, or directing him to do so, one of the officers removed the bag without making any direct contact with the appellant’s genitalia.
[77] Investigators did not seek approval from anyone in a supervisory capacity to conduct the strip search of the appellant or those found in apartment 204.
The Reasons of the Trial Judge
[78] The trial judge was satisfied the strip search of the appellant was not conducted in an unreasonable manner. She expressed her conclusion in these terms:
[72] At the same time, having considered the whole of the evidence, including the videotape of the search of the accused I cannot find that the procedure was so flawed as to result in a constitutional violation. Section 8 of the Charter imposes a standard of reasonableness, not perfection. There was no evidence to indicate that the potential for breach of privacy – caused by the open door and access on the bridge – resulted in any actual invasion of privacy. This is not like the case of R. v. Smith, 2010 ONCJ 137, in which the accused could see the feet of people walking by the open door where he was being strip searched. The concern over failure to seek approval for the search is minimized given the court’s finding that there were grounds to justify the procedure. The removal of the bag of contraband by the officer was not so invasive as to trigger a breach. I accept the officer’s evidence that the bag was concealed between the buttocks and was not in the accused’s anus. In short, I conclude that the search, while far from a model procedure, was not so flawed as to violate s. 8 of the Charter.
The Positions of the Parties
[79] For the appellant, Ms. Pringle contends the strip search of the appellant was not conducted in a reasonable manner. The appellant was required to face an open door at the police station. His genitalia were exposed directly to anybody who passed by and indirectly by video to anyone with access to it. He was not asked whether he consented to the video recording of the search. Strip searches of persons charged with possession of controlled substances for the purpose of trafficking were the routine policy of the Windsor police service. The strip search ignored most of the guidelines delineated in Golden and was unreasonable.
[80] For the respondent, Ms. Gevikoglu submits the search was conducted in a reasonable manner. The trial judge drew this conclusion from the whole of the evidence and her assessment is entitled to deference on appellate review. For the most part, the search was compliant with the guidelines in Golden which are, after all, guidelines, not mandatory requirements. The trial judge’s factual findings reveal no palpable and overriding error and reflect no incorrect statement of legal principle.
The Governing Principles
[81] In Golden, at para. 101, the Supreme Court of Canada concluded the guidelines for strip searches contained in the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (PACE), accorded with the constitutional requirements of s. 8 of the Charter. PACE lists several questions that provide a framework for police deciding how to best conduct a Charter compliant strip search incident to arrest. The PACE questions are these:
1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
The Principles Applied
[82] I would give effect to this ground of appeal. In my respectful view, the appellant’s strip search was not carried out in a reasonable manner.
[83] The strip search was carried out in an appropriate room at police headquarters by two officers of the same gender as the appellant. However, no supervisory authorization was sought, much less obtained. Rather than close the door to the search room, as was the usual practice, the officers left the door open. The appellant was required to stand naked, facing a hallway accessible by other persons of either gender. The search was videotaped and available for viewing by others at various places in the station. The evidence was unclear about whether the appellant had been informed that he was being videotaped. Nor was he given the choice to remove the plastic bag from between his buttocks himself. A police officer removed it, albeit without touching the appellant’s genitalia. Apart from the videotape, the police created no adequate record of the strip search.
CONCLUSION
[84] I agree with the appellant’s third ground of appeal, but not the second or first. The warrantless arrest was based on reasonable grounds and was lawful. The authority to strip search was established. But the manner in which the strip search was conducted was unreasonable, thus failed constitutional muster.
[85] The trial judge found no constitutional infringement, and thus did not apply s. 24(2) to the evidence gathered during the strip search. The respondent invited us to do so in the event we found a constitutional infringement. Although the strip search did violate s. 8 of the Charter, I am not satisfied the record is sufficiently complete to enable a s. 24(2) analysis.
[86] For these reasons, I would allow the appeal, set aside the convictions and order a new trial.
Released: November 7, 2014 (K.F.)
“David Watt J.A.”
“I agree K. Feldman J.A.”
“I agree K. van Rensburg J.A.”