Case Name: R. v. Clarke. Between Her Majesty the Queen, respondent, and John Clarke, Gaetan Heroux and Stefan Pilipa, applicants. [2003] O.J. No.

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1 Page 1 Case Name: R. v. Clarke Between Her Majesty the Queen, respondent, and John Clarke, Gaetan Heroux and Stefan Pilipa, applicants [2003] O.J. No Court File No. 0075/02 Ontario Superior Court of Justice Ferrier J. Heard: January 20-23, and February 10-12, Judgment: February 28, (265 paras.) Civil rights -- Security of the person -- Lawful or reasonable search -- Searches incidental to arrest or detention - - Strip searches -- Detention and imprisonment -- Detention -- What constitutes arbitrary detention -- Canadian Charter of Rights and Freedoms -- Denial of rights -- Remedies, exclusion of evidence -- Remedies, stay of proceedings. Application by the three accused for a stay of proceedings based on Charter breaches. The applicants were charged with various offences, including counselling assault of police officers and participating in a riot, arising out of a demonstration. An altercation between police and 1,500 protestors at the legislature building led to violence, and some people and police horses were injured. The applicants were arrested a month after the event. All of them were strip searched, Clarke three times. All were held for 24 hours or more before being taken before a justice to show cause. The applicants sought a stay of proceedings on the grounds that the strip searches were a breach of their s. 8 Charter rights, and that the overnight detention breached s. 9 of the Charter. Alternatively, Clarke sought the exclusion of notes which had been found in his backpack, on the ground of breach of s. 8. Finally, the applicants sought the production of excised portions of legislature security officers' notes. The Crown argued that the strip searches were reasonable, and necessary because the applicants were to be placed in a cell with other prisoners. HELD: Application dismissed. The strip searches were not conducted in accordance with the police department's own guidelines. The appropriateness of removing all articles of clothing was not con-

2 Page 2 sidered, and no notes were kept of the searches and the reasons for them. The searches breached s. 8 of the Charter. However, the searches were incidental to a lawful arrest, conducted reasonably and professionally. The first search of Clarke did not violate s. 8, but the second and third searches did, as they were not reasonable or necessary. There had also been breaches of ss. 6 and 9 of the Charter with respect to the overnight detention, which was not reasonably necessary. However, the breaches were not sufficiently serious to warrant a stay of proceedings, which was available only in the clearest of cases. The evidence of the notes in Clarke's backpack was not excluded, as there was no causal link between the discovery of that evidence and the Charter breaches. Finally, the excised portions of the notes by the legislature security officers were either not relevant or were protected by solicitor-client privilege. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 6, 7, 8, 9, 24(2). Criminal Code, s Safe Streets Act. Counsel: Vincent Paris and John Cisorio, for the Crown. Peter M. Rosenthal, for John Clarke. J. Robett Kellermann, for Gaetan Heroux. Jeffry A. House, for Stefan Pilipa. FERRIER J.:-- Introduction 1 The applicants are charged with various offences arising out of a demonstration held on June 15, 2000 by the Ontario Coalition Against Poverty ("OCAP"), at the Provincial Legislature, Queen's Park, in Toronto. John Clarke is charged with counselling assault police and counselling participation in a riot. Gaetan Heroux and Stefan Pilipa are charged with participating in a riot. The preliminary hearing into the charges was heard in the Ontario Court of Justice at Old City Hall, 60 Queen Street West, Toronto. The applicants were committed for trial on the 18 day of January 2002 on all the charges mentioned above, except the charge of counselling assault, which is before the court as a result of the Crown adding the charge when preferring the indictment. 2 The demonstration was held to protest against the provincial government's having enacted the Safe Streets Act, cut welfare payments and eliminated programs to build affordable housing. 3 The protesters asked that a delegation be permitted to address the Legislature on these issues. When approximately 1,500 demonstrators arrived at Queen's Park in the afternoon of June 15, 2000, there were several hundred police officers awaiting their arrival. The demonstrators were informed that no delegation would be allowed to enter the Legislature. An altercation between some of the demonstrators and the police officers escalated to the point where a substantial disturbance oc-

3 Page 3 curred. Mounted officers engaged the crowd; a number of police officers and demonstrators employed violence. Some officers and some demonstrators were hurt, as were some police horses. There was not insignificant property damage. 4 The applicants were all arrested on the 21st day of July 2000, more than a month after the event at Queen's Park. After arrest each applicant was subjected to a "strip search" at the police station. John Clarke was subjected to three strip searches before he was finally released on bail. 5 The applicants were not released from the police station but were held overnight and brought to bail court on the 22nd day of July They were ordered released by the court. The applicants Gaetan Heroux and Stefan Pilipa were released from the courthouse, but the applicant John Clarke was detained and sent to Toronto City Jail where he was subjected to the third strip search before being finally released later in the day. 6 The applicant Stefan Pilipa was not brought before a justice within 24 hours of his arrest. The applicant John Clarke was brought before a justice approximately 24 hours after his arrest. 7 At the time of his arrest, John Clarke was carrying a backpack which contained numerous documents, many allegedly in his handwriting, and many containing references to the demonstration of June 15, They are described by the Crown as an "action plan" for the demonstration and it is evident that they were prepared prior to June 15, They were seized by the police in the circumstances described below. 8 As part of the disclosure process, notes of two Legislative Security Service (L.S.S.) officers were produced, with portions blacked out. 9 The evidence was tendered by affidavit and viva voce testimony. 10 As above noted, the three applicants were all arrested on the 21st day of July Mr. Clarke was charged with participate in a riot, failing to comply with a recognizance and failing to comply with probation. 12 Mr. Heroux was charged with participate in a riot, two counts of assault police, obstruct police and fail to comply with a recognizance. 13 Mr. Pilipa was charged with participate in a riot and fail to comply with a recognizance. 14 The applicants seek the following relief: (1) A stay of these proceedings on the ground of a breach of their s. 8 Charter rights arising out of the strip searches. (2) A stay of these proceedings on the ground of a breach of their s. 9 Chatter rights arising out of their detention overnight in custody. (3) A stay of these proceedings on the ground of a breach of their s. 7 Charter rights arising out of an alleged loss of objectivity by the Crown. (4) As an alternative to the above, Mr. Clarke seeks an order excluding as evidence the contents of the backpack as a result of the foregoing breaches. (5) Mr. Clarke seeks an order excluding as evidence the contents of the, backpack on the ground of a breach of his s. 8 Charter rights arising out of the circumstances of the seizure of the contents of the backpack.

4 Page 4 (6) A determination of the admissibility of the blacked out portions of the L.S.S. Officers' notes. Summary of the Result 15 The relief sought by the applicants in numbers (1)-(5) above is denied. The notes referred to in number (6) above will not be disclosed to the defence. 16 I will address the issues in this case in the following order: the strip searches, the arbitrary detention, the backpack search, Crown objectivity, the disclosure of the notes, and the appropriate remedy. The Strip Searches Relevant Police Policy 17 The Toronto Police Services Policy & Procedures Manual in force at the time contained the following (A strip search is referred to as a "complete search"): Stronger grounds are required as the level of a intrusiveness of a search increases. The decision as to the appropriate level of search rests with the searching officer. The more intrusive the search the more justification is required and officers must be able to articulate the need for the more intrusive search.... A complete search may include the removal of some or all of a person's clothing and a visual inspection of the body. Due to the high degree of intrusiveness of this type of search, it shall only be conducted when it is reasonable and necessary, considering the objective or purpose, and the grounds that exist at the time. When conducting a complete search, the person shall be asked, when appropriate, to remove clothing one article at a time. An inspection of the article of clothing shall be conducted in a methodical manner. The person shall be permitted to replace articles of clothing after inspection. A person should not be left in a completely naked state after a search. Replacement clothing will be provided to the person being searched as soon as possible when clothing is seized as evidence. The search shall not involve the removal of any more articles of clothing than necessary, or any more visual inspection of the person's body than is necessary, to achieve the objectives of the search. While conducting the search, members shall avoid unnecessary body contact and unnecessary conversation. Members shall consult with the officer in charge prior to conducting a complete search at a police station. When a complete search has been conducted a TPS 101 must be submitted outlining the circumstances and the grounds that existed at the time.

5 Page 5 Except in exigent circumstances, two officers of the same sex as the person being searched shall conduct all complete searches.... Recording Searches Full details of all searches shall be recorded in the memorandum book including the grounds for the level of search conducted. A TPS 101 shall be submitted in the case of all complete searches and body cavity searches When a complete search is deemed necessary the searching officers shall * advise the person why a complete search is required * where appropriate, allow the person to replace articles of clothing as the search progresses * complete a TPS 101 outlining - the grounds and circumstances that existed at the time of the search - the date and time the search was conducted - the location where the search was conducted - the names and badge numbers of the searching officers - name and badge number of the officer in charge - the results of the search (weapons/evidence found) - any other pertinent details (communication barriers, disability of accused, interpreter required, adult contacted) * have the officer in charge approve and sign the TPS 101 Officer in Charge Prior to lodging a person in a police cell shall ensure * for safety reasons, providing a complete search has not been previously conducted, that a complete search of the person is conducted

6 Page 6... * that a TPS 101 is submitted for all complete searches (Emphasis added) TPS The TPS 101 form is required by the policy to be completed each time a strip search is conducted. The form included the following printed words: GROUNDS CONCERNING COMPLETE SEARCH OF THE ACCUSED LODGED IN POLICE CELLS. REASON FOR COMPLETE SEARCH: The search was conducted prior to lodging this person in a police cell for safety reasons. While in custody in the cells, the accused will come into contact with other prisoners. Items may be passed between them, thus endangering prisoners, officers working in the cell area and court staff. 19 The form also requires other information including the date and time of the search, the location, who conducted the search, and the officer in charge. The officer preparing the report and the officer in charge of the station are required to sign the form. The original is to go to "Corporate Information Services", with copies to four other locations. One copy is to go with the accused if he is transported elsewhere. John Clarke 20 John Clarke was arrested at about 10:20 a.m. He was strip searched at 52 Division soon after his arrival there, at about 10:40 a.m., by the two arresting officers. He was made to remove each item of his clothing until he was completely naked. He was told to bend over while an officer stood behind him. The procedure took, three to five minutes. 21 After he was permitted to get dressed, John Clarke was placed in a cell. Shortly after 11:00 a.m., he was taken into the criminal investigation office at 52 division and placed in a small room where he was held for several hours. He was questioned by Det. Irwin and another intelligence officer, Det. Kijewski. He repeatedly made it clear that he would make no statement. 22 Mr. Clarke was taken to another part of the police station late in the afternoon and was fingerprinted and photographed. Then a second strip search was conducted by two different officers at the direction of a C.I.B. officer. He was made to remove his clothing until he was once again completely naked. He was again told to bend over. The procedure took three to five minutes. These officers were unaware that Mr. Clarke had already been strip searched. 23 Mr. Clarke was well known to the police generally and specifically to Det. Irwin and Det. Meisener, both of whom were directly in charge of the arrest the investigation and processing of the accused. Det. Meisener did not testify. Det. Irwin acknowledged that he had had frequent contact with Mr. Clarke, who often took an active part in public demonstrations and rallies, often as a

7 Page 7 speaker. He had never seen Mr. Clarke resort to weapons, but testified that the violence on June 15, 2000 was beyond what he had seen before at demonstrations. He acknowledged that he would be surprised if Clarke was in possession of a weapon. He knew nothing about Mr. Clarke's use or lack of use of drugs. 24 Mr. Clarke was also well known to P.C. Hopkinson, one of the arresting officers, as a leader of OCAP and a principal speaker at many demonstrations. P.C. Hopkinson in his testimony did not suggest that he believed Mr. Clarke might be or was likely to be in possession of a weapon, but he also did not discount the possibility. 25 Mr. Clarke was held overnight in the police cell at 52 division, and along with Heroux and Pilipa was taken the next morning before a justice of the peace at Old City Hall Court. All three men required sureties. Mr. Heroux and Mr. Pilipa were released from the courthouse, their sureties having arrived before bail court closed. Mr. Clarke's wife, his surety, did not arrive in time and this explains why Mr. Clarke was transported from there to Toronto City jail. There was some evidence to suggest that Mr. Clarke's wife did arrive in time, but I am satisfied on balance that it was the delay in her arrival which prevented Mr. Clarke's release from Old City Hall. 26 On arrival at the Toronto jail, he was strip searched again. On this occasion the inside of his mouth, his hair and ears were also examined. He was again forced to bend over. 27 In the case of Mr. Clarke, the TPS policy for strip searches was breached in the following ways: (i) Neither officer considered the appropriateness of having him remove and replace one article of clothing at a time. The policy requires such a consideration. (ii) Neither officer-recorded details of the strip search in their memo books,rather recording only the fact of the search. The policy requires full details to be recorded in a memo book. (iii) In the first TPS 101 form, the date of the report was left blank. (iv) In the second TPS 101 form the "results of the "search" was left blank. (v) It does not appear that the required copies were distributed as required, I note that had the first report been properly distributed, the second search may have been avoided. (vi) The officer in charge did not sign the second TPS In R. v. Golden (2001), 159 C.C.C. (3d) 449, at para. 101, the Supreme Court of Canada found the guidelines in the U.K. legislation dealing with strip searches to be in accordance with the constitutional requirements of s. 8 of the Charter. 29 Of the 11 guidelines, one is not applicable here and of the remaining ten, eight were appropriately met. The guidelines were not met in that the accused was completely undressed and proper records were not kept of the reasons for, and the manner in which the search was conducted. 30 P.C. Hopkinson has 15 years experience on the force. He was aware that Mr. Clarke was to be taken before a justice of the peace to show cause, on Mr. Clarke's onus, why he should be released - this in view of the charges of breach of a probation order and failure to comply with an undertaking. This officer testified that the first strip search was effected because the accused was going into custody and would be in contact with other prisoners. The strip search was to check for concealed

8 Page 8 drugs for reasons that are apparent, but also for weapons to ensure officer safety, safety of the accused and safety of other prisoners with whom he would come in contact. As well it was to prevent deliberate or inadvertent passing of items to other prisoners which might be used as weapons. 31 P.C. Smith, the other officer conducting the first strip search, has 13 years on the force. His testimony concerning the reasons for the search was to the same effect as that of P.C. Hopkinson. 32 Furthermore, both officers testified that if an individual was going to be held in a police cell, even if only for a few hours, their practice was invariably to strip search the individual. P.C. Hopkinson said this was his policy, "unless they came in naked". 33 It is apparent that neither officer has had any updated training concerning strip searches in view of court decisions on the subject over the past five years. It is also apparent that they had no knowledge of the effect of the decisions in R. v. Flintoff (1998), 126 C.C.C. (3d) 321 (Ont. C.A.), and Golden, and today continue to apply their same approach to strip searches. 34 Apart from the defects and policy breaches noted above, the strip searches of Mr. Clarke, were carried out in a professional manner and in accordance with the TPS 101 policy and the guidelines in Golden. 35 I am mindful that Golden had not yet been decided at the time of these searches. Gaetan Heroux 36 The intention of the police was to arrest Mr. Heroux as he left his residence on the morning of July 21, However, they missed him, and Det. Irwin called his residence later that morning and spoke to Mr. Heroux's wife at around 12:40 p.m. He asked her to have her husband call him on an important matter, Heroux, who was at work, called Irwin at about 1:30 p.m. In the meantime, Irwin was in telephone contact with Mr. House, who at the time was acting for all three accused in the context of bail and bail hearing arrangements. 37 When Heroux called, Det. Irwin told him Clarke and Pilipa were in custody and that he was also to be arrested. Irwin told Heroux he would try to have all three before a bail court that afternoon and have them released that day. Heroux indicated he would surrender voluntarily and he did so at about 2:05 p.m. 38 Heroux was arrested, booked and strip searched within the next 15 minutes and then was placed in an interview room. 39 The strip search took no more than five minutes. It was conducted by P.C. Adams and P.C. Stacey. He was required to remove all his clothing. He was also required to bend over and touch his toes while the policemen observed him from behind. He was required to lift his scrotum while the officer observed. 40 Like Clarke, Mr, Heroux was well known to the police as a demonstrator and participant in many rallies and demonstrations in the city of Toronto. 41 P.C. Adams has 24 1/2 years on the force. He testified that he was instructed by the officer in charge to conduct the strip search because Heroux was going to the cells. The procedure he follows in reference to such searches had not changed over the years, even where the accused's offence is impaired driving and is to be held only a short while. If the accused is being lodged in the cells Adams conducts a strip search. Although P.C. Adams professed awareness of the TPS 101 policy, it is apparent he was not familiar with many of its provisions. He never allowed a prisoner to replace

9 Page 9 articles of clothing after removal, one at a time, so that the accused was never fully naked. He said the policy was never so interpreted in police circles. He expressed the view that it was never appropriate to permit an accused to replace articles of clothing after removal as the search progressed because of the risk of "sleight of hand" transfers of weapons or drugs from one article to another by the accused. 42 P.C. Stacey has 16 years with the TPS. His practice is the same as the other officers - complete nudity, following the removal of all clothing. As well, if an accused is to go into a cell he will be strip searched - this is a blanket policy - whether or not the accused is to be in contact with other prisoners. 43 The officers conducting the strip search of Mr. Heroux breached TPS policy in the following ways: (i) There is no evidence that a TPS 101 form was completed and distributed as required. P.C. Adams did not recall doing it and he had no note in his memo book concerning the search. Although P.C. Stacey testified he would have completed one, the Crown could not produce the document. Only the fact of the search was recorded by P.C. Stacey in his memo book. (ii) Neither officer considered the appropriateness of having Mr. Heroux remove and replace one article of clothing at a time. 44 As in the case of Mr. Clarke, the UK guidelines discussed in Golden were met in the case of Mr. Heroux in all respects except in reference to the complete undressing and the failure to keep proper records of the reasons for and the manner in which the search was conducted. 45 Once again, I am mindful that Golden had not been decided as of July 21, The reasons for strip searching Mr. Heroux were essentially the same as for Mr. Clarke - because Heroux was going into custody and would be in contact - with other prisoners, which is always the case where the accused has to appear before a justice of the peace on a show cause hearing for bail. It is also apparent that these officers considered it appropriate to conduct a strip search if an accused is simply being lodged in the police cells and their practice is to do so. The TPS policy so provided. Stefan Pilipa 47 Mr. Pilipa was arrested at 8:25 a.m. July 21, 2000 and taken immediately to 52 Division where he was booked and then strip searched. The strip search was conducted by P.C. Novinc, who has been with TPS for 18 years, with no other officer present. It took three to four minutes. Mr. Pilipa was not told of the reasons for the strip search. 48 P.C. Novinc was not aware of the TPS Policy and did not recall it being brought to his attention. He did not recall completing a TPS 101 report but would have stated in the form that the grounds for the search was safety of the accused, the officers and other prisoners. The Crown could not produce the form. 49 He was unaware that he was required by police policy to note the details of the search in his memo book and did not do so. He had been advised that Mr. Pilipa was to be held for a show cause hearing. It was therefore necessary to search for weapons or implements of escape.

10 Page When conducting strip searches he does not permit accused persons to remove and replace one article of clothing at a time to avoid the accused being completely naked, and did not consider it in this case. 51 In reference to Pilipa,the TPS policy was breached in the following ways: (i) Failing to consider the appropriateness of permitting Mr. Pilipa to remove and replace one article of clothing at a time to avoid him being completely naked. (ii) Failure to record the details in his memo book, including the grounds for the level of search conducted. (iii) Apparently, failure to complete and distribute a TPS 101 form. (iv) Failure to advise Mr. Pilipa why the strip search was required. (v) Failure to have two officers present during the search. 52 In addition, the U.K. Guidelines discussed in Golden were not followed to the same extent as in the case of Mr. Clarke and Mr. Heroux. 53 All three accused found the experience of being strip searched, to say the least, unpleasant, distasteful and an indignity. 54 Notwithstanding the foregoing, I am satisfied on the evidence that the conducting of the strip searches did not form part of a "vendetta" against these accused. It was not the purpose of the police to humiliate or embarrass any of the accused. The searches were conducted in a professional manner except for the deficiencies noted. The Law 55 In each case the search was a warrantless search. It was thus prima facie unreasonable and the onus is on the Crown to show that it was reasonable: Hunter v. Southam (1984), 14 C.C.C. (3d) 97 at pp (S.C.C.). A search will be reasonable if it is authorized by law, if the law is reasonable and the search is carried out in a reasonable manner: R. v. Collins (1987), 33 C.C.C. (3d) 1 at p. 14 (S.C.C.). 56 The common law power of search incident to arrest, which permits strip searches, does not violate s. 8 of the Charter. R. v. Golden, (2001), 159 C.C.C. (3d) 449 at para. 104 (S.C.C.). 57 Strip searching is one of the most intrusive manners of searching, and also one of the most extreme exercises of police power: R. v. Flintoff (1998), 126 C.C.C. (3d) 321 at para. 23 (Ont. C.A.). 58 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", "demeaning", "upsetting", and "devastating": Golden at para In order for a strip search to be justified as an incident to arrest, it is necessary that the arrest itself be lawful: Golden, para The second requirement before a strip search incident to arrest may be performed is that the search must be incident to the arrest. The search must be related to the reasons for the arrest itself. A

11 Page 11 search is only justifiable if the purpose of the search is related to the purpose of the arrest: Golden, para. 92. In Golden, the arrest was for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the appellant's person. The court observed that had the appellant been arrested for a different reason, such as for a traffic violation, the common law would not have conferred on the police the authority to conduct a strip search for drugs, even if the police had knowledge in previous involvement in drug related offences, since the reason for the search would have been unrelated to the purpose of the arrest. 61 In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest: Golden, para In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession, or evidence related to the reason for the arrest. The police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest: Golden, para Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter Golden, para In R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.) at paras. 19 and 20, Lamer J. referred to Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.) and summarized the holding of Justice L'Heureux-Dubé. The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands, of the arrestee or others, and the discovery of evidence that can be used at the arrestee's trial. Lamer J. went on to observe that the restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the Police were looking for and why. There are both subjective and objective aspects to this issue. The police must have one of the Purposes for a valid search incident to arrest in mind when the search is conducted. Further, the, officer's belief that this purpose will be served by the search must be a reasonable one. Lamer J. stressed that the standard was not a standard of reasonable and probable grounds. He held that the only requirement is that there be some reasonable basis for doing what the police officer did. Lamer J. gave the following example. A reasonable and probable ground standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast under the standard applied in Caslake, the police would be entitled to search an arrested person for a weapon if, under the circumstances, it seemed reasonable to check whether the person might be armed. As Lamer J. observed, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. Nevertheless there must be a "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest: Caslake, paras. 19 and However, the standard for strip searches is more stringent. In Golden the court specifically noted that in holding that there must be reasonable and probable grounds for concluding that a strip

12 Page 12 search is necessary, it distinguished the lesser burden that applies in less intrusive searches such as the frisk search in Cloutier, and the search of the automobile in Caslake. 66 The following passages from the majority in Golden are particularly relevant to the case at bar: [94] In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a 'frisk' or 'pat down' search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the 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. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search. [95] The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationales for the common law power of search incident to arrest. Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter. A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a 'routine' strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest. And of particular significance here: [96] It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. 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. However, this is not the situation in the present case. The type searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse, [1994] O.J. No (QL) (Prov. Div.) [summarized 25 W.C.B. (2d) 475]. [97] 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]

13 Page 13 O.J. No (QL) (C.J.), at paras , 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. (Emphasis added) 67 Finlayson J.A. in Flintoff stressed the importance of distinguishing a case of a person accused of impaired driving being held in a police cell for a few hours from that of an accused who will be entering the general prison population. In Flintoff, the accused was arrested at the scene of an accident on a charge of impaired driving. Upon arrival at the police station he was strip searched and then had a breathalyzer test. He never entered the cell area and the police had no intention to place the accused in the cells. A general police policy required that every police officer strip search every person who was brought to the station in custody regardless of the circumstances of the case or the individual. The search was performed for the safety of the accused, the police and other persons at the station. 68 Finlayson J.A. held that the "Order", being the statement of the police policy, was clearly directed to problems inherent in introducing an accused person into the prison population - a process which he said raises special problems which were unnecessary to address in Flintoff. There never was any suggestion that the accused was to be held in custody regardless of the results of the breathalyzer test. In the result, the breathalyzer evidence was excluded and the charge dismissed. 69 Finlayson J.A. made it clear that the decision was fact specific and not to be taken to be instructive of police procedures on arrest generally, and in particular with regard to any person who is to be detained in a police cell. 70 I note that Flintoff was decided two years before the arrests in this case. 71 I have referred above to the approval by the Supreme Court of Canada of the passage from Coulter where Duncan J. drew a difference between "the prison context and the short-term detention context". 72 In Coulter, the accused was charged with impaired driving. He was going, to be released when sober. He had been arrested at about 7:00 p.m., strip searched about 10:30 p.m. and held in the cells until about 5:00 a.m. The search was conducted pursuant to a usual practice when an "arrestee" is lodged in cells. Duncan J. also used the expressions "detainees" and "releasees" in distinguishing between the manner and, perhaps, the length of time, of the detention and whether or not the accused was to be introduced into the prison population. He held that the strip search infringed s. 8, but did not stay the charges, nor did he exclude the breathalyzer evidence. 73 Coulter was decided five days after the arrests in this case. 74 In Coulter, an appeal was taken to the Ontario Superior Court. Langdon J. of this court was firmly of the view that there was no s. 8 violation, but accepting that there was one, he felt the viola-

14 Page 14 tion was trivial and did not justify excluding the evidence. Langdon J. pointed to the distinction between the circumstances in Flintoff and in the case before him in Coulter, and said this at paras. 35 and 36: 35 Although the case of Flintoff and this case both involve a strip-search, I find very little other similarity between the two cases. The decision in Flintoff to stay the prosecution was a decision taken to denounce a gross and flagrant abuse of police power. It was simply impossible to justify performing a strip search on every suspect who entered the police station. The situation is quite otherwise when one considers the situation of a suspect who is about to be lodged in the cells, either temporarily or attending a bail hearing. I do not believe that there is any material distinction between the 'detainee' and the 'impaired releasee' as Justice Duncan has drawn one. 36 I have concluded that the Charter violation here does not justify exclusion of evidence: a fortiori, it would not justify a stay of proceedings. See R. v. Coulter, [2001] O.J. No Langdon J.'s decision in Coulter was released on October 5, Golden was heard February 15, 2001 and judgment was rendered December 6, Although the Supreme Court of Canada makes no reference to the appeal judgment of Langdon J., I am of the respectful view that Langdon J.'s findings concerning the lack of a s. 8 violation and its triviality have been effectively overruled by the Supreme Court of Canada. 76 Finally, in R. v. S.F., [2003] O.J. No. 92 (Ont. C.J.), two young female alleged offenders were charged with robbery. They were 17 and 15 years old. They each came to the police station with a parent. They were given the particulars of the charge and placed under arrest. The arresting officers had decided that neither girl would be released from the station into the care of her parent but would be detained for a show cause hearing later that day in the courthouse. They would not be coming into contact with other prisoners. It was not a reverse onus situation. The police wanted sureties. It was police protocol to lodge arrested persons being held for a show cause hearing in the police cells until they could be transported to the courthouse for the show cause hearing. 77 As understood by the officers, it was part of police booking procedures to conduct a strip search of detained persons before they are lodged in the station cells to await transportation to the courthouse irrespective of the length of time that lodging is needed. Each girl was strip searched. The parents were not told of this. There were many circumstances which made the strip searches particularly egregious which, while important, do not assist in the case at bar. The s. 8 violation resulted in a stay of the proceedings. In the course of her reasons, Justice Katarynych said the following: 22 The question about the reasonableness of the strip search in this case cannot be separated from a question about the reasonableness of the detention of either of these girls in the circumstances of this particular arrest. 23 This strip search was inextricably bound up with the decision of the officers to lodge these girls in the cells.

15 Page The single focus on the charge unleashed a chain of thinking that went something like this: - robbery charge means no release without a show cause hearing; no release means detention in the station cells; any person detained presents a risk that can only be contained by a strip search; therefore, lodging in the station cells requires strip search. 25 I accept, as a matter of common sense, that police cells and police paddy wagon transport are environments that need to be kept freed of weapons or contraband for the safety of those imprisoned, and those coming in contact with them, and that the safety issues are no less for a person detained waiting a bail hearing than they are for any other person in custody. 26 The difficulty in this case is that these two young girls were swept into a policy and attitude that took no meaningful account of whether their particular circumstances presented a level of risk at all. 27 On the evidence in this voir dire, I could find no justification for lodging these girls in the cells at all, and since it was that particular lodging that triggered the 'need' for a strip search, nothing with which to reasonably ground a belief that a strip search was needed of either girl to guarantee the safety of the police, the two girls themselves or others detained in the station or at the courthouse Had these girls been left with their parents in the station conference room or the reception area to pass the time until the afternoon sittings of the court, the strip search could have been avoided altogether. 32 This was not a street arrest occurring hard on the heels of the alleged crime. It was one taking place in a police station, and almost a month after the incident giving rise to the charge If release to the care and supervision of their parents was not considered an adequate measure of control of the girls, then a further alterative, short of booking them into the cells, was available. 36 There was nothing to suggest that the police could not trust them to sit with their daughters in the station conference room or reception area until it was time for court. Had that been done, both girls could have gone from the police station directly to the courthouse, and in a cruiser rather than a police wagon, thereby reducing any risk inherent in lodging either girl in the station cells.

16 Page The learned trial judge in R. v. S.F. applied a reasonable and probable grounds test to determine whether or not a strip search was necessary. The accused were not going to be entering the general population nor mingling with other prisoners. She held the police did not have such grounds. 79 Katarynych J. distinguished Langdon J.'s decision in Coulter. Analysis 80 In considering whether there existed in the case of each of Mr. Clarke, Mr. Heroux and Mr. Pilipa, the prerequisites for a valid exercise of police power to strip search, I turn to the requirements set out in Golden. 81 The arrests in each case were lawful. 82 Was the strip search in each case incidental to the arrest? 83 On the evidence it is clear that none of the strip searches were related to the reasons for the arrests. Rather, the searches were carried out for the purpose of safety - safety of the accused, the police and other prisoners, as well as security - to check for drugs and to prevent deliberate or inadvertent transmission of weapons or articles capable of being used as weapons. 84 Golden states that the common law authorizes the police to search for weapons as on incident to arrest for the purpose of "ensuring the safety of the police, the detainee and other persons" (para. 94). 85 It is also apparent from Golden that strip searches related to safety issues in a custodial setting may be appropriate. I refer again to para. 96 of Golden: It may be useful to distinguish between strip searches immediately incidental to arrest and searches related to safety issues in a custodial setting. 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. 86 The majority in Golden makes it clear that in cases of strip searches incidental to arrest, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. However, the court did not give guidance as to the appropriate standard when the strip search is being conducted for safety and security purposes when an accused is going to be entering the prison population. 87 The Crown argues that it would be unreasonable to require a threshold of reasonable and probable grounds for a strip search in these circumstances. How, asks the Crown, could an officer attest to reasonable and probable grounds to believe that there is a concealed weapon when even a thorough pat down search does not support such an averment? The heightened concern and greater need to ensure that there are no concealed weapons or illegal drugs in turn supports a lower standard of justification. 88 I note that the court in Golden did not indicate that in all cases where an individual is entering the prison population a strip search is justified. I also note that the court did not qualify or reduce the "reasonable and probable grounds" standard in the case of persons about to enter the prison population.

17 Page In my view a realistic approach to this issue is required. In my view it would be a rare case when a strip search would not be justified on safety and security grounds when an accused is going to be entering the prison population. One could give numerous examples of very small, but nevertheless, deadly weapons which could easily be secreted on one's person and not revealed by a thorough pat down search. To cite an example, I take notice that one could purchase, at many hardware stores in this province, a box cutter with a retractable razor-sharp blade, not much thicker or larger in size than two stacked Canadian $2 coins. These items can be used as deadly weapons and they could easily be brought into a custodial setting, inadvertently or otherwise, and passed to another prisoner inadvertently or otherwise, or used against another prisoner or an officer. P.C. Hopkinson testified that he was once stabbed with a secreted knitting needle. He has found razor blades sewn into clothing. 90 In Coulter, Duncan J. observed that, "It may be that it is more appropriate to speak of what is occurring, not as a search incident to arrest, but rather as the exercise of ancillary police powers incident to their lawful authority and duty to detain, at least temporarily, in the public interest." 91 Duncan J. also had no hesitation in concluding that strip searching anyone who is entering, the prison population is necessary, justified and reasonable. 92 In R. v. Brown, [1998] O.J. No. 4682, Trafford J. held that the strip searches of two accused in custody at Old City Hall during a preliminary hearing were violations of their s. 8 rights. He held as follows at para. 12: In my opinion, it is appropriate for this court to declare that at common law a police officer has the power to strip-search or to use extra restraints on a prisoner at a courthouse detention facility where, objectively viewed, there are reasonable grounds to suspect it is necessary to, ensure the safety of persons in the courthouse, to prevent an escape of a prisoner, or to otherwise provide for the proper administration of justice. The exercising of such powers must be reasonable and otherwise compatible with the values recognized in the application of the Charter to the custodial context of such prisoners. 93 In my view that is the appropriate standard to apply when an accused is going to be entering the prison population. Although each case must be considered on a case by case basis by the police, it would be a rare instance when a strip search could not be justified on safety and security grounds when an accused is going to be entering the prison population. 94 What has not been addressed in the cases thus far is the meaning to be attached to phrases such as "entering the prison populations"; "integrated into the prison population"; "introduced into the prison population"; all of which appear in the decisions. 95 In the context of this discussion, one should focus on the purpose of the strip search. If the purpose is for safety and security reasons, then a relevant question to ask when a strip search is proposed or considered is: "Objectively viewed, are there reasonable grounds to expect that this accused will be in contact with other persons who are being detained by the state?" 96 If the answer to the question is yes, then in my view, the heightened considerations, the "greater' need to ensure that weapons or drugs are not being concealed" (Golden, para. 96) come into play and the search will be more readily justified.