



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pilon, 2018 ONCA 959

DATE: 20181129

DOCKET: C63198

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Pilon

Appellant

Joseph Wilkinson and Maureen Salama, for the appellant

Howard Piafsky, for the respondent

Heard: November 8, 2018

On appeal from the
    conviction entered by Justice Louise L. Gauthier of the Superior Court of
    Justice on September 6, 2016 and from the sentence imposed on September 6,
    2016.

Hourigan J.A.:


I.

Overview

[1]

The appellant was convicted of possession of crack
    cocaine and fentanyl for the purpose of trafficking and was sentenced to 30
    months incarceration. He appeals his convictions on the ground that the trial
    judge erred in finding that two strip searches conducted by police did not
    violate his s. 8
Charter
rights.
[1]

[2]

As will be explained below, I come to a different conclusion
    than the trial judge on whether the strip searches were
Charter
compliant. In my view, the police violated the appellants s. 8
    rights by conducting the searches in the field instead of at a police station.
    However, I would not exclude the evidence from the strip searches on a s. 24(2)
    analysis. Consequently, I would dismiss the appeal, even though my reasoning
    departs from the reasoning of the trial judge.

II.

Facts

[3]

On July 7, 2015, the Sudbury Police Service obtained a
    warrant under the
Controlled Drugs and Substances Act
, S.C. 1996, c.19, for a room at the Knights Inn motel. When police
    entered the room they found three individuals, including the appellant. All
    occupants of the room were arrested.  The appellant resisted arrest, while the
    arrest of the other occupants occurred without incident. The appellant was
    eventually placed in handcuffs, with his hands behind his back. Despite the
    handcuffs, he was observed repeatedly trying to place his hands in the front and
    back of the shorts he was wearing.

[4]

The police conducted a search incident to arrest and
    noticed that the appellant was wearing two pairs of athletic shorts. They removed
    the outer pair of shorts and discovered a roll of cash tucked in the pocket of
    the inner pair of shorts. Sergeant Train decided to continue the search
    incident to arrest and looked inside the second pair of shorts. The appellant
    was not wearing underwear and Sergeant Train briefly observed the top of the
    appellants buttocks and an elastic band attached to the appellants penis.

[5]

The appellant remained non-compliant and continued
    reaching inside his shorts. The police believed that he was attempting to hide
    items. They also had concerns about their safety and the safety of the
    appellant. When asked by police whether he was concealing anything in his shorts,
    the appellant repeatedly denied doing so.

[6]

Sergeant Train authorized officers to take the
    appellant to the bathroom in the motel room. There, Sergeant Train conducted a
    strip search, which consisted of pulling the waistband of the appellants
    shorts away from his body, so that Sergeant Train could view his genital area,
    and reaching in and pulling out objects attached by the elastic band. Sergeant
    Train was wearing surgical gloves at the time and did not touch the appellants
    genitals. The objects retrieved were a pill bottle containing fentanyl patches
    and a ball of electrical tape with crack cocaine inside.

III.

Decision Below

[7]

A
voir dire
was conducted regarding the strip searches. The
    officers involved in the search testified and the defence called no evidence. Trial
    counsel for the appellant took no issue with the search warrant and conceded
    that the appellants arrest was lawful. He also conceded that the police were
    searching incident to arrest for evidence related to the offences for which his
    client had been arrested. The appellant only took issue with the reasonableness
    of the decision to strip search him and the lack of exigent circumstances
    justifying a strip search in the field.

[8]

Sergeant Train testified that the first strip search was accidental. He
    intended to continue the ongoing pat down search when he pulled the appellants
    inner shorts out towards him and observed the elastic around the appellants penis.
    According to Sergeant Train, he did not anticipate that the appellant would not
    be wearing underwear.

[9]

The trial judge accepted Sergeant Trains unchallenged evidence that
    this was an unintentional strip search. She noted that the search was not very
    intrusive and was discontinued once Sergeant Train observed the elastic band
    tied to the appellants penis.  Furthermore, no other person saw the
    appellants genital area and there was no bodily contact. Given these
    circumstances, the trial judge concluded that the first strip search did not
    violate s. 8.

[10]

The
    trial judge carefully considered the factual circumstances leading up to the
    second search. She found as a fact that, despite the testimony of Sergeant
    Train that he was concerned the appellant may have been hiding a weapon, there
    was no basis for the officers to believe that the item being concealed was a weapon.
    However, she found that the police had good reason to believe that the
    appellant was attempting to dispose of drugs or otherwise prevent their
    detection. In addition, she found that there was a risk of danger to the
    appellant, given his level of physical resistance and his continual attempts
    to get at the drugs. The trial judge concluded that these two factors
    justified the decision to conduct the search on site. In her estimation, the
    risk of loss of evidence and danger to the appellant amounted to exigent
    circumstances that rendered a strip search in the motel room reasonable.

[11]

The
    trial judge went on to consider whether the second strip search was conducted
    in a manner consistent with the directions from the Supreme Court of Canada in
    the seminal case on strip searches,
R. v. Golden
, 2001 SCC 83, [2001]
    3 S.C.R. 679. She noted that the search was minimally invasive of the
    appellants privacy rights; it was a very brief search conducted in a separate
    room. At no time was the appellant naked. Only Sergeant Train saw the
    appellants groin area. He wore gloves when he removed the drugs and, if there
    was any contact with the appellants genitals, it would have been fleeting and
    incidental to the removal of the drugs. In addition, the search was only conducted
    after the appellant repeatedly refused to yield the drugs.

[12]

The
    trial judge found that both strip searches were
Charter
compliant. The
    defence did not call any evidence at trial and convictions were entered on two
    counts of
possession for the purpose of trafficking
.


IV.

Analysis

(1)

Legal Principles

(a)

Strip Searches Incident to Arrest

[13]

In
Golden
the
    issue for determination was whether the power to search incident to arrest is
    broad enough to encompass the authority to strip search an arrested individual.
    Justices Iacobucci and Arbour, writing for the majority, undertook an
    exhaustive review of the law regarding strip searches in Canada and other
    jurisdictions. A number of legal principles emerge from their analysis of the
    preconditions to a lawful strip search incident to arrest that are relevant to
    the issues in this case.

[14]

First,
    a strip search is defined as the removal or rearrangement of some or all of
    the clothing of a person so as to permit a visual inspection of a persons
    private areas, namely genitals, buttocks, breasts (in the case of a female), or
    undergarments:
Golden
, at para. 47.

[15]

Second,
    even the most sensitively conducted strip search is highly intrusive, as strip
    searches are considered a humiliating, degrading, and traumatic experience. Therefore,
    they should not be carried out as a matter of routine policy:
Golden
,
at paras. 83, 90.

[16]

Third,
    strip searches are only constitutionally valid where: (1) they are conducted
    incident to a lawful arrest for the purpose of discovering weapons in the detainees
    possession or evidence related to the arrest; (2) the police establish reasonable
    and probable grounds justifying the strip search in addition to reasonable and
    probable grounds justifying the arrest and; (3) the strip search is carried out
    in a manner that does not infringe s. 8:
Golden
,
at para. 99.

[17]

Fourth,
    strip searches should be conducted at a police station unless there are exigent
    circumstances requiring that the detainee be searched prior to being transported
    to a police station:
Golden
,
at para. 102.

[18]

Fifth,
    an arrested persons non-cooperation and resistance does not necessarily
    entitle the police to engage in behaviour that disregards or compromises his
    physical and psychological integrity and safety:
Golden
,
at
    para. 116.

[19]

Sixth,
    the Supreme Court adopted the guidelines in English legislation concerning the
    conduct of strip searches. These guidelines provide a series of questions,
    which the court, at para. 101, found will provide a framework for police in deciding
    how best to conduct a strip search incident to arrest in compliance with the
Charter
:

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?

(b)

Field Strip Searches and Exigent Circumstances

[20]

The
    foregoing principles offer lower courts clear guidance in determining whether a
    strip search is
Charter
compliant. However, an issue arose in this
    case about the courts intention in
Golden

as to whether
    a field strip search can be justified where the concern is the preservation of
    evidence.

[21]

The
    appellant submitted that exigent circumstances must be related to a safety
    concern and not the preservation of evidence. He relied on the statement made
    by the court in
Golden
at para. 102:

Strip searches conducted in the field could only be justified
    where there is a demonstrated necessity and urgency to search for weapons or
    objects that could be used to threaten the safety of the accused, the arresting
    officers or other individuals. The police would also have to show why it would
    have been unsafe to wait and conduct the strip search at the police station
    rather than in the field.

[22]

The
    appellant also cited Moldaver J.s comment in
R. v. Saeed
, 2016 SCC
    24, [2016] 1 S.C.R. 518, at para. 79, where, in the context of a discussion on
    penile swabs, he stated, safety concerns may justify a strip search for
    weapons in the field.

[23]

In
    contrast, both the trial judge and counsel for the respondent read the Supreme
    Courts comments in para. 93 of
Golden
as authorizing field strip searches
    in order to preserve evidence. There, the court stated that the r
easonableness of a search for evidence is governed by the
    need to preserve the evidence and to prevent its disposal by the arrestee. Contrary
    to the submission of the appellants counsel, a careful review of that
    paragraph makes clear that the court was not considering strip searches
    generally, but was examining the circumstances that justify a field search.

[24]

In
    addition, it is important to note that in
Golden
after detailing the
    legal principles regarding strip searches the court went on at paras. 107 to
    108 to consider whether the strip search in that case was a violation of the
    accuseds s. 8 rights.  The Crown attempted to justify the field search in
Golden
on the basis t
hat exigency arose from the risk that
    this evidence might be lost or destroyed if police waited to conduct the strip
    search until the appellant was transported to a police station. The court
    rejected that argument, finding that the police station was very close by and
    there was no reasonable prospect that the handcuffed accused could have
    surreptitiously discarded the drugs hidden on his person. Moreover, even if he were
    able to discard the drugs, it is unlikely that he could do so unnoticed by one
    of the officers at scene and there would then be strong circumstantial evidence
    tying the accused to the drugs.

[25]

Tellingly,
    the court did not dismiss the Crowns argument on the ground that the
    preservation of evidence could never qualify as exigent circumstances to
    justify a field search.  To the contrary, after examining the facts of this
    case, the court concluded that, 
this case was not
    one involving an urgent and necessary need to conduct a strip search in the
    field for the purpose of preserving evidence.

[26]

In
    the jurisprudence since
Golden
, I have not found any case from an
    appellate or trial court that explicitly found that concerns over the need to
    preserve evidence constituted exigent circumstances that justified a field
    strip search. I note that
in
R v.
    Kelsy
, 2011 ONCA 605, 280 C.C.C. (3d) 456,
    Rosenberg J.A. reviewed the context in which exigent circumstances have been
    recognized at common law. First, at paras. 25-31, he discussed how the doctrine
    of exigent circumstances has been used to justify a search without prior
    judicial authorization when there is an imminent risk of loss or destruction of
    evidence. When discussing exigent circumstances and the risk of loss of evidence,
    there was no reference to strip searches. Then, Rosenberg J.A. discussed
    exigent circumstances in the context of public and police safety. It is here,
    at para. 33, that he noted that a strip search in the field could only be
    justified where there is a demonstrated necessity and urgency to search for
    weapons. That analysis might suggest that preservation of evidence is not a
    recognized basis for authorizing a strip search in the field.

[27]

Notwithstanding
    the broad statement in para. 102 of
Golden
, that exigent circumstances
    are limited to safety concerns, and the absence of case law considering
    preservation of evidence as an exigent circumstance justifying a field strip
    search, it is at least arguable that the Supreme Court in
Golden
left
    open the possibility that the need to preserve evidence could qualify as
    exigent circumstances that permit a field search. For the purposes of my
    analysis below of the two strip searches in this case, I am prepared to assume
    that the preservation of evidence can qualify as exigent circumstances. I do
    this because, as will be explained, in the present case I am not satisfied that
    there was an exigent need to preserve evidence. I leave open the possibility
    that another case might
provide a factual matrix
    that presents very serious and immediate concerns about the preservation of
    evidence
such that there is an urgent and necessary need to conduct a
    strip search in the field.

(2)

Was The First Strip
    Search
Charter
compliant?

[28]

The
    trial judge found that the first strip search was an accidental search because
    Sergeant Train did not anticipate that the appellant would not be wearing
    underwear. This was an error of law. As noted above, in
Golden
the
    court defined a strip search to include the rearrangement of some or all of the
    clothing of a person so as to permit a visual inspection of a persons
    undergarments. Thus, when Sergeant Train pulled on the waistband of the shorts in
    an effort to view the appellants underwear, he was engaged in a strip search.
    The search was not an accident and therefore the principal basis for the trial
    judges finding that it was reasonable is unsustainable.

[29]

In
    light of this error, it falls to this court to examine the circumstances of the
    first strip search afresh to determine whether it was
Charter
complainant. There can be no issue that the search was conducted in a manner
    that was minimally intrusive of the appellants privacy rights. It amounted to a
    very quick glimpse of the appellants upper buttocks and groin.  No one other
    than Sergeant Train saw the appellants genitals during this search. No one
    touched the appellants buttocks or genitalia during this search.

[30]

The
    real concern with this search is not the manner in which it was conducted, but
    where it was conducted. In short, did the Crown meet its onus of establishing
    that there were exigent circumstances that justified a field search? In my
    view, the answer to that question is no.

[31]

Sergeant
    Train testified that he observed the appellant attempting to reach into the
    waistband of his shorts. Although he did not know what the appellant was
    reaching for, it does not appear that his concerns were safety related. Instead,
    he had a hunch, based on prior investigations, that the appellant was carrying
    drugs in his groin area. However, Sergeant Train did not attempt to justify the
    first strip search on the basis that there was a real possibility that evidence
    would be destroyed.

[32]

In
    my view, in submitting at trial and on this appeal that the first strip search
    was
Charter
compliant, the Crown relied solely on the ground that it
    was accidental. The Crown failed to lead sufficient evidence that there were
    exigent circumstances based on safety grounds or the need to preserve evidence
    that justified a field search. Accordingly, I would find that the first strip
    search violated the appellants s. 8 rights.

(3)

Was The Second Strip
    Search
Charter
Compliant?

[33]

The
    respondent submits it was reasonable to conduct the second strip search in the
    field because there were exigent circumstances, namely an urgent need to
    preserve evidence and a need to protect the safety of the appellant, the
    civilians in the motel room, and the police officers present.

(a)

Preservation of Evidence

[34]

With
    respect to the preservation of evidence, the trial judge placed reliance on the
    fact that the appellant continued to attempt to access the objects in his
    shorts. She found that the police reasonably believed that the objects were
    drugs and that the appellant was attempting to conceal or dispose of the drugs.

[35]

This
    analysis ignores the finding in
Golden
, where in similar circumstances
    the court concluded that the Crown failed to establish that there were exigent
    circumstances regarding the preservation of evidence. In the present case, the
    appellant was in a confined space, handcuffed, and surrounded by police officers.
    If he somehow was able to dispose of the drugs undetected, it is a common sense
    inference that they would be easily retrievable by the police. Further, there
    would be strong circumstantial evidence that the appellant was in possession of
    the drugs.

[36]

In
    my view, the trial judge erred in finding that the Crown met its onus of
    establishing that the risk of loss of evidence constituted exigent
    circumstances that would justify a strip search in the field.

(b)

Safety Concerns

[37]

There
    remains the alternative ground of safety concerns. It is important to look
    carefully at the trial judges reasons on this issue. She found as a fact that
    there was nothing to lead the officers to believe that the object was a
    weapon. Thus, there were no exigent circumstances that justified a search for
    a weapon. Instead, she found that, given the appellants ongoing efforts to
    gain access to what was hidden in his shorts and his level of physical
    resistance, there was a risk that he would harm himself if he was placed in a
    cruiser and taken to the police station for a strip search.

[38]

In
    considering exigent circumstances where there is a possibility of a weapon,
Golden
at para, 94, is instructive:

Only if the frisk search reveals a
    possible weapon secreted on the detainees person or if the particular
    circumstances of the case raise the risk that a weapon is concealed on the
    detainees 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
.

[39]

There
    is, of course, a fine distinction between particular circumstances of a case
    that raise a risk that a weapon is being concealed and the mere possibility
    that there may be weapons. That distinction may be debated endlessly at trial
    or on appeal. But a police officer does not have the luxury of time. The
    officer must make a decision in a matter of seconds, all the while mindful of his
    or her duty to the accused not to breach
Charter
rights and his or her
    obligation to protect the safety of people in the immediate vicinity, including
    civilians, other police officers, and the accused.

[40]

In
    the present case, Sergeant Train testified that his primary concern was the
    preservation of evidence, but that he also had safety concerns because the
    object could have been a weapon. Given the trial judges finding that the
    officers had no reason to believe that the object was a weapon, we can infer
    that Sergeant Trains evidence was rejected. Although she did not explain her thought
    process in reaching this conclusion, it is reasonable to infer that the trial
    judge found that the police, having observed the object and with knowledge of
    the appellants practice of hiding drugs in his groin area, did not actually
    believe that the object could be a weapon. That was a finding that was open to
    the trial judge and there is no basis for interference by this court.

[41]

The
    trial judges finding regarding the safety of the appellant is another matter.
    In my view, this finding cannot stand. The trial judge found that given his
    conduct there was a safety concern about transporting the appellant to the
    police station. With respect, the difficulty in transporting the appellant is not
    causally connected to, let alone resolved by, the police conducting a strip
    search in the motel room. The appellant had been defiant and physically
    uncooperative from the moment the police entered the motel room. There was no
    basis for the police to speculate or the trial judge to conclude that the
    appellant would become compliant if the strip search was conducted at the motel
    room. The police were still required to transport the appellant to the police
    station after the strip search was conducted.

[42]

In
    my view, the police have failed to meet their onus of establishing exigent
    circumstances that would justify a field strip search. Both strip searches
    violated the appellants s. 8 rights.

(4)

Section 24(2)
    Analysis

[43]

The
    trial judge did not conduct a s. 24(2) analysis. There is, in my view, a
    sufficient evidentiary basis for this court to undertake the test mandated by
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. That test requires a
    consideration of the seriousness of the violation, the impact of the violation
    on the
Charter
protected interests of the appellant, and societys
    interest in an adjudication of the case on its merits, along with a balancing
    of these factors.

[44]

Turning
    first to the seriousness of the violation, it is clear from the trial judges
    reasons that she believed that the officers were acting in good faith. There
    was no evidence to suggest that strip searches were part of the police forces
    routine practice and no suggestion that the police regularly conducted strip
    searches in the field.

[45]

The
    manner in which the strip searches were carried out is also important. The
    first strip search consisted of a momentary glimpse of the appellants upper
    buttocks and groin area. The second strip search was also very brief and took
    place in a private area. Sergeant Train, a senior officer acting in a
    supervisory capacity, wore gloves and was the only officer who observed the
    appellants private areas. There was no body contact and the appellant was
    never naked. In addition, the search only took place after the appellant was
    repeatedly asked to yield the drugs. The circumstances of the searches in this
    case contrast sharply with the facts in
Golden
. In that case, the
    strip searches included a body cavity search undertaken in a restaurant and
    involved forceful physical contact.

[46]

In
    the case at bar, the only error the police made in conducting the strip
    searches was doing them in the field. Had these searches been conducted in the
    same manner at the police station, there would have been no s. 8 violation.
    Other than location, they were textbook examples of how strip searches should
    be conducted. In my view, the seriousness of the violation factor militates in
    favour of admission of the evidence.

[47]

As
    noted above, in
Golden
the Supreme Court stated that even the most
    sensitively conducted strip search is highly intrusive. Accordingly, I find
    that the impact of the breach on the appellants
Charter
protected interests
    favours exclusion of the evidence.

[48]

The third factor, societys interest in an adjudication on the
    merits, strongly favours admission of the evidence. This is highly reliable
    evidence and the charges against the appellant are very serious, as he was
    found in possession of two highly pernicious drugs.

[49]

In balancing these factors, I conclude that admission of the
    evidence would not bring the administration of justice into disrepute. The
    officers were acting in good faith and conducted searches that were minimally
    intrusive of the appellants privacy rights. Other than the location of the
    searches, they were conducted in a manner that is consistent with the best
    practices endorsed by the Supreme Court in
Golden
. In addition, the
    evidence is highly reliable and society has a genuine interest in the
    adjudication of these serious crimes on the merits. As such, I would not exclude
    the evidence from the strip searches on a s. 24(2) analysis.


V.

Disposition

[50]

I
    would dismiss the conviction appeal and dismiss the sentence appeal as
    abandoned.

Released: P.L. November 29, 2018

C.W.
    Hourigan J.A.

I
    agree. P. Lauwers J.A.

I
    agree. G. Pardu J.A.





[1]

The appellant also sought leave to appeal his
    sentence, but by the time this appeal was heard he had served his custodial
    sentence. His counsel advised this court that he was abandoning the sentence
    appeal as moot.


