



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 Mullers 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 Biggies drugs. The
    informants explained a prospective purchaser was to knock on the sliding door
    of a ground floor apartment to get access to Biggies 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 Kochanskis 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 Biggies 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 Biggies 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
    Mullers buttocks. Another bag was visible inside the outer bag. The officer
    removed the bag from between Mullers 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 judges 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 appellants 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 Biggies business and received drugs for making his
    premises available for this purpose. The police did not know Biggies 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 appellants 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 appellants 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 appellants 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, 6tall, 220 pounds, large
    build, short brown hair, braids.

[30]

Ultimately,
    the trial judge concluded the appellants 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 accuseds 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 accuseds departure from
    the building; and

d) The accuseds 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 appellants 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 appellants 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 appellants 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 appellants 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, affd [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 appellants 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 appellants 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 persons 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 persons 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 judges 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 appellants
    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 appellants 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 scales surface.

[63]

The
    decision to conduct a strip search of the appellant was made at the scene of
    the appellants arrest. The search of apartment 204, the reported site of the
    appellants 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 appellants 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 officers testimony that he had found
    evidence hidden in an individuals 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 officers 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 judges 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 appellants 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 appellants
    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 courts 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 officers
    evidence that the bag was concealed between the buttocks and was not in the
    accuseds 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 judges 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 arrestees
    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
    appellants 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 appellants
    genitalia. Apart from the videotape, the police created no adequate record of
    the strip search.

CONCLUSION

[84]

I
    agree with the appellants 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.


