Ontario Criminal


Charter of Rights

ENFORCEMENT OF RIGHTS
Police failed to ascertain whether second strip search was necessary

Accused charged with importing cocaine into Canada. Accused applied for stay of proceedings or exclusion of evidence based on breach of s. 8 Charter rights. Upon her arrival at airport from Jamaica, officers discovered that accused had approximately 1.2 kilos of cocaine hidden in her bra. Customs officers conducted strip search of accused and shortly thereafter transferred custody of her to police. Accused was transferred to detachment and placed in cell, where female officer conducted further strip search of her. Door of cell remained open to hallway and search was video recorded by security camera located in cell. Officers did not discuss circumstances of case and whether strip search was necessary. No supervisory authorization was sought for strip search. After strip search accused provided statement that was video and audio recorded. Accused testified that she felt uncomfortable in circumstances, but that search had no real impact on her or her recorded statement. Accused argued second strip search by police was unreasonable. Accused argued that even though there was no causal connection between search and statement, statement should have been excluded. Search was not challenged until after jury had watched and listened to accused’s recorded statement. Application allowed, evidence excluded, mistrial ordered. Other male officers did not view any part of search and there was no one else in detachment at time of search. Officers were unfamiliar with, or unaware of, any written policy or protocol regarding strip searches, but knew that they were routinely done in drug importation cases. Police failed to ascertain from customs officers whether strip search had been conducted and whether second search was necessary. Suspicion that drugs may be hidden somewhere else did not validate conducting strip search. There were no reasonable grounds for second search since accused was in custody from time of first strip search and would not have had opportunity to acquire or hide on her person any other contraband. Strip search was unreasonable and violated accused’s s. 8 Charter rights. Given facts of case, especially circumstances and timing of bringing of application, stay was not justified. While accused’s statement was taken shortly after search, it was not causally connected to search. Strip search and accused’s statement were integral part of same transaction, there existed temporal connection, and s. 24(2) Charter analysis was appropriate. Charter-infringing conduct was very serious, as strip search was very significant violation of right to privacy and accused’s right to be protected from unreasonable search. Given that accused had attempted to re-enter Canada with cocaine on her person, impact of breach was less significant. Breach did not impact on accused’s demeanour or attitude when her statement was recorded. If statement was excluded, Crown still had case. There was heightened interest in prosecution of this case. Seriousness of breach overwhelmed other two considerations that favoured admission of statement. Actions of officers in relation to second search, while not intentional, reflected troubling lack of knowledge of law and principles to be applied to strip searches. While public had interest in adjudication of case on its merits, educated public would have demanded better police practices. Breach was so significant that accused’s recorded statement ought to have been excluded. As statement had already been viewed by jury, only recourse was to declare mistrial.

R. v. Foster (Dec. 12, 2014, Ont. S.C.J., Thomas A. Bielby J., File No. Crim J(F) 296/13) 118 W.C.B. (2d) 489.

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