Ontario Criminal

Charter of Rights

No reasonable and probable grounds for concluding strip search necessary

Accused charged with impaired driving and refusal to provide breath sample. Accused applied for stay of proceedings based on breach of s. 8 Charter rights. Following his arrest accused was strip searched before being lodged in cells for night. Accused testified he was searched at scene and again after leaving booking room, but no contraband was found. Accused testified that officer who conducted strip search was yelling at him, so much so that few other officers entered room where he was naked. Application allowed, stay of proceedings entered. Officer testified he conferred with another officer to determine whether to release accused or lodge him in cells, but there was no notation of that in his notes. Several important pieces of information were not recorded in any officers’ notes, including indication of who authorized strip search. Absence of notes in relation to pivotal issues by any of officers was troubling and diminished weight of their evidence. Accused’s movements in booking room did not justify strip search, and were equally consistent with agitation, panic, fear, and being drunk. This was impaired driving case and accused had no prior criminal record. There were no justifiable safety concerns regarding accused’s potential possession of weapon or contraband. There were no reasonable and probable grounds for concluding strip search was necessary. Strip search conducted was not justified in law and constituted breach of s. 8 Charter rights. Only appropriate remedy was stay of proceedings.

R. v. McGee

(Feb. 3, 2012, Ont. C.J., Grossman J.) 99 W.C.B. (2d) 117 (21 pp.).

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