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R. v. Ferguson

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                                             Case Name:
                                          R. v. Ferguson

                                            Between
                            Her Majesty the Queen, (respondent), and
                                Peggy Ann Ferguson, (appellant)

                                         [2005] O.J. No. 182

                                  Milton Court File No. M2262/03


                                  Ontario Superior Court of Justice
                                          Milton, Ontario

                                          R.G. Thomas J.

                                       Heard: January 7, 2004.
                                     Judgment: January 19, 2005.

                                              (73 paras.)

Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Protection
against unreasonable search and seizure -- Remedies for denial of rights -- Specific remedies -- Ex-
clusion of evidence -- Stay of proceedings -- Criminal law -- Offences -- Offences against person
and reputation -- Motor vehicle offences -- Impaired driving or driving over the legal limit -- Care
and control, what constitutes -- Powers of search and seizure -- Search -- Warrantless searches --
Appeals -- From verdict.

Appeal by Ferguson from her conviction for having care and control of a motor vehicle while im-
paired. A police officer was called to investigate a vehicle parked at the rear of a general store on
the grass. The interior light was on, the key was in the ignition, but the motor was not running. Fer-
guson was asleep in the vehicle with the top half of her body in the passenger seat and the bottom
part of her body in the driver seat. The officer knocked on the window four times before Ferguson
acknowledged him and stated that she was camping and wanted to sleep. The officer observed indi-
cations of impairment and Ferguson admitted that she had consumed alcohol. The officer arrested
her for impaired care or control of a motor vehicle. Ferguson wanted to remain in the vehicle and
the officer physically dragged her to his police cruiser. A female officer was dispatched and con-
ducted a pat-down search. An empty vodka bottle was found in the trunk of Ferguson's car. Fergu-
son was taken to the police station where a breath technician took two readings that indicated that
Ferguson was impaired. The technician formed the opinion that Ferguson was obviously impaired.
                                                                                                  Page 2




Following the breath tests, Ferguson was taken to a lock-up facility where the officer in charge
strip-searched her before lodging her in a cell. The trial judge found as a fact that Ferguson occu-
pied the driver's seat, and was therefore presumed to be in care and control of the vehicle. The offi-
cer in charge testified that Ferguson was searched for her own protection, and the protection of oth-
ers, because she was intoxicated, and because she indicated that she was on anti-depressant medica-
tion. The judge held that the search was reasonable and justified by safety concerns. Ferguson sub-
mitted that the trial judge erred in finding that she was in care or control of the vehicle at the mate-
rial time. Ferguson further submitted that the warrantless strip search of her by the officer in charge
was undertaken pursuant to a compulsory policy directive and was unreasonable.
HELD: Appeal dismissed. The trial judge's findings of fact were reasonable and were supported by
the evidence. In addition, there was evidence to support a reasonable inference that a realistic risk
existed that Ferguson would wake up and decide to drive her vehicle. It was unreasonable for the
judge to conclude that the strip search was justified because of a speculative concern that Ferguson
might be concealing a dangerous object. A frisk search or electro-magnetic search was not intrusive
and should have been conducted first to establish a reasonable suspicion or articulable cause that
Ferguson concealed a dangerous object. The evidence of Ferguson's impairment was not obtained in
a manner that infringed or denied any rights or freedoms guaranteed by the Canadian Charter of
Rights and Freedoms. There was no causal or temporal connection between the evidence of im-
pairment and the unreasonable strip search of Ferguson. Therefore, this was not a case that war-
ranted a stay of proceedings or the exclusion of evidence under s.24 of the Charter.

Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 24(1), s. 24(2).
Criminal Code, s. 253, s. 258(1)(a).

Appeal From:
On appeal from a conviction entered by Justice L.M. Baldwin, Ontario Court of Justice, Burlington
on May 29, 2003.

Counsel:
Jane E. Hooey, for the crown/respondent.
Harold Kim Taylor, for the defendant/appellant.




1 R.G. THOMAS J. (endorsement):-- Peggy Ann Ferguson appeals her conviction on a charge
of impaired care or control of a motor vehicle. The trial judge conditionally stayed a finding of guilt
on the companion "over 80 mgs." charge. There is no appeal against sentence. She did not apply for
a stay of the one-year driving prohibition or payment of the $1,000.00 fine.
2 In essence, she advances two grounds of appeal. She says that the trial judge erred in finding
that she was in care or control of the vehicle at the material time and also in holding that the war-
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rantless strip search of her by the officer in charge of the lock-up facility was lawful and reasonable
to ensure she was not concealing weapons when she was temporarily lodged in a cell.
Facts
3 On May 9, 2002 a Halton Regional Police Officer was dispatched to a general store/gas station
at the intersection of Regional Road 25 (formerly Highway 25) and 15 Sideroad in the Town of Hal-
ton Hills to investigate a vehicle parked at the rear of the premises. He arrived at the scene at ap-
proximately 11:50 p.m. The car was parked at the end of the parking lot where there is a two-foot
embankment which slopes to an open field. Almost the entire vehicle was resting in the grassy area.
4 The interior light was on. The key was in the ignition but the motor was not running. The appel-
lant, who was dressed in a black pantsuit, was lying on the front seat. The vehicle was equipped
with two bucket seats in the front which were in the normal upright position. The bottom part of her
body was in the driver's seat and the top was across the passenger side. She was covered by a blan-
ket. She was not wearing shoes. It was a warm night and the front window on the driver's side was
partially open. The officer knocked on the window three times in an effort to get the appellant's at-
tention. On the third occasion, she turned and looked at him, appearing to acknowledge his pres-
ence. Then, she went back to sleep and ignored him. He knocked on the window a fourth time and
she finally opened the door. She told the officer she was camping. She was reluctant to exit the ve-
hicle and stressed that she wanted to sleep.
5 The officer observed the usual indicia of impairment, including bloodshot eyes, slurred speech,
which was very slow and deliberate, and a strong odour of an alcoholic beverage coming from her
breath. She admitted she had consumed "a few" alcoholic drinks. The officer arrested her for im-
paired care or control. She wanted to return to her vehicle to sleep. The appellant did not want to
move. The arresting officer was obliged to carry or drag her to his police cruiser and a female col-
league was dispatched to the scene to assist him. She conducted a pat-down search of the appellant
before she was placed into the cruiser. The officer found nothing of significance on her person but
did find an empty 60 oz. vodka bottle in the vehicle; the officer believed she discovered it in the
trunk.
6 The arresting officer took the appellant to the Milton Detachment of the Halton Regional Police
Service. Although the appellant was neatly dressed, her clothing was somewhat dishevelled and
there was dirt on the legs of her slacks. She was wearing a white shirt or blouse under the jacket of
the pantsuit. The arresting officer took control of the appellant's purse. The appellant admitted to the
arresting officer she had too much to drink but emphasized that she was not driving and just wanted
to camp.
7 Upon arriving at the Police Station, the arresting officer and the appellant attended upon a fe-
male staff sergeant who was in charge of the lock-up facility. After the appellant finished her dia-
logue with the officer in charge, she was turned over to a female breath technician soon after 12:40
a.m. Analysis of the appellant's breath samples was completed shortly after 1:20 a.m. The readings
were 220 and 205.
8 When the breath tests were over, the arresting officer delivered the appellant to the officer in
charge. The arresting officer said that apart from the fact the appellant was determined to remain in
her vehicle, she was cooperative with him. The breath technician had been at the arrest scene briefly
but returned to the detachment to prepare the intoxilyzer machine. At the scene, she noticed the ap-
pellant had sandals for her feet but was wearing only one.
                                                                                                  Page 4




9 The breath technician formed the opinion that the appellant was "obviously impaired". There
was a strong odour of an alcoholic beverage coming from the appellant's breath. Her eyes were wa-
tery, bloodshot and red-rimed. Although the appellant's speech was slurred, she was extremely
talkative but rambled at times. The technician found her to be polite. She cried off and on.
10 In the mandated interval between the two tests the appellant had a conversation with the tech-
nician. She told the technician she had been visiting her father who was in hospital in Fergus. She
went to see him about 3:00 p.m. and at 6:00 p.m. she visited her mother at her nearby residence. She
said she went to a liquor store and purchased a bottle of vodka. She had a couple of drinks. She was
driving home to her residence in Hamilton using back roads. She decided to have a picnic. She ate
cheese and bread. She drank three shots of vodka while in the car. She drank until approximately
9:00 p.m. She was on antidepressant medication and had taken a pill that morning. She was aware
she should not be consuming alcohol while on that medication. She got tired and parked her vehicle.
She said the vehicle ended up in the ditch and she couldn't get it out. She didn't have to go to work
the next day and she decided to go to sleep. She noticed that the appellant was wearing a long white
shirt with flared sleeves under the jacket of the black pantsuit. The appellant called it a "hippie
shirt". It was not tucked in and it was dirty.
11 The arresting officer delivered the appellant to the officer in charge of the lock-up facility a
few minutes before 1:30 a.m. The officer in charge decided to detain the appellant at the lock-up
facility temporarily until she sobered up. The officer in charge strip-searched the appellant prior to
lodging her in a cell. The appellant became very upset and was screaming and yelling in the cell
block. Less than two hours later, the appellant was released by the officer in charge on a promise to
appear when a friend arrived to pick her up.
Care or Control
12 When an individual is found in the driver's seat of a vehicle, there is a presumption of care or
control pursuant to s.258(1)(a) of the Criminal Code. The presumption can be rebutted if the defen-
dant establishes on a balance of probabilities that he or she was not in the driver's seat for the pur-
pose of setting the vehicle in motion.
13 If the presumption is not rebutted, the individual is deemed to be in care or control of the mo-
tor vehicle and there is no need for the prosecution to prove beyond a reasonable doubt that the ve-
hicle had some potential to create danger in the hands of the impaired defendant. When the pre-
sumption is not displaced, there is no need for the trial judge to address the issue of whether the ve-
hicle is operable or immovable and/or the issue of dangerousness.
14 Where the defendant has rebutted the statutory presumption by establishing a lack of intention
to drive, it is still open to the Crown to prove "de facto" care or control.
15 In R. v. Toews, [1985] 2 S.C.R. 119, 21 C.C.C. (3d) 24 at p.28 the Supreme Court of Canada
stated:

                   Acts of care or control, short of driving, are acts which involve some use of the
                   car or its fittings and equipment, or some course of conduct associated with the
                   vehicle which would involve a risk of putting the vehicle in motion so that it
                   could become dangerous.
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16 In Ford v. The Queen, [1982] 1 S.C.R. 231, 65 C.C.C. (2d) 392, the Supreme Court stated at
p. 399:

                   Care or control may be exercised ... where an accused performed some act or se-
                   ries of acts involving the use of the car, its fittings or equipment ... whereby the
                   vehicle may unintentionally be set in motion creating the danger the section is
                   designed to prevent.
17 In R. v. Wren (2000), 144 C.C.C. (3d) 374, Feldman J.A. for the Court of Appeal of Ontario
pointed out that when the presumption has been rebutted, the issue to be determined on the facts of
each case is whether any acts by the defendant could cause the vehicle to become a danger whether
by putting it in motion or in some other way. In that case, the trial judge found the defendant had
rebutted the presumption because he occupied the vehicle at the relevant point in time only to wait
for the tow truck. Feldman J.A. explained (at pp. 383-4) as follows:

                   It was open for the trial court to find that when the police found the respondent,
                   although he was impaired and had not relinquished custody of his vehicle, he did
                   not meet the test for the actus reus of care or control set out in Ford [1982] 1
                   S.C.R. 231 and Toews [1985] 2 S.C.R. 119, modified in accordance with the ex-
                   planation in Vansickle, [1990] O.J. No. 3235:

                          Performance of some act or series of acts which involves some use of the
                          car or its fittings or equipment, or some course of conduct associated with
                          the vehicle which would involve the risk of putting the vehicle in motion
                          or in some other way to become dangerous, which is what the section is
                          designed to prevent.
18 Justice Feldman emphasized that the object of the offence of care or control of a motor vehicle
is to protect persons and property from danger. When the presumption has been rebutted and it has
been shown that there is no potential danger either to any person or any property, from the combina-
tion of the impaired person and their motor vehicle, there is no need for the protection which is the
object of the offence.
19 Proof of a risk of danger must be established beyond a reasonable doubt in order for the
Crown to prove de facto care or control of a motor vehicle under s.253 of the Criminal Code. The
more difficult question is what kind of risk is sufficient to trigger the care or control prohibition. It
would appear that three risks of danger have been identified in the cases when an intoxicated indi-
vidual uses a motor vehicle for a non-driving purpose:

                   (i)   the vehicle will unintentionally be set in motion;
                   (ii)  through negligence a stationary or inoperable vehicle may endanger the in-
                         dividual or others;
                   (iii) the individual who has decided not to drive will change his or her mind.
20 The appellant did not testify at trial. Accordingly, the defence was obliged to rely on what the
appellant told the police officers and the circumstances at the time she was discovered in the vehi-
cle.
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21 Impairment was not a live issue at trial. The breath tests were not challenged. Actually, there
was minimal cross-examination of the police officers directed towards the appellant's condition, her
location in the vehicle and what she said about where she had been and what she had done before
stopping en route to her Hamilton residence and parking her car.
22   In her Reasons for Judgment, the trial judge stated as follows:

                   Constable Craig located Ms. Ferguson in the driver's seat, with the upper portion
                   of her body laying across the passenger seat. Section 258(1) of the Criminal
                   Code provides:

                         ... where it is established that the accused occupied the seat or position or-
                         dinarily occupied by a person who operates a motor vehicle ... the accused
                         shall be deemed to have had the care or control of the vehicle unless the
                         accused establishes that they did not occupy the seat or position for the
                         purpose of setting the vehicle in motion.

                   I am satisfied that it is established law, that where an intoxicated person is dis-
                   covered occupying the driver's seat of a vehicle, the presumption will apply
                   unless the person can demonstrate that his or her occupancy began without the
                   purpose of setting the vehicle in motion. Ms. Ferguson was drinking alcohol in
                   her vehicle while driving before she ended up in the ditch behind the gas station.
                   She then decided to go to sleep. Constable Craig testified that the vehicle was not
                   stuck in the ditch. Constable Harnack testified that the vehicle may have been
                   able to be driven out of the ditch. It is reasonable to infer that she intended to
                   drive home after she woke up.

                   I conclude on the facts of this case that the presumption of care or control applies
                   and has not been rebutted.
23 The trial judge found as a fact that the appellant was occupying the driver's seat at the material
time. Accordingly, the presumption of care or control was activated. She concluded that the appel-
lant had failed to rebut the presumption. Therefore, the appellant was deemed to be in care or con-
trol and there was no need for the prosecution to establish the vehicle had the potential to create
some danger in the hands of the impaired defendant. There was no need for the trial judge to ad-
dress the issues of whether the vehicle was inoperable or immovable and/or dangerousness. In my
view, the trial judge's findings of fact are supported by the evidence and are reasonable. That ends
the matter.
24 However, even if the trial judge was wrong in finding that the appellant was occupying the
driver's seat, I am satisfied that the prosecution was able to establish de facto care or control beyond
a reasonable doubt. Although the appellant was apparently sleeping when the officer arrived, the
interior light of the vehicle was on and the key was in the ignition. The motor was not running. The
appellant was covered with a blanket. She was not wearing shoes. Her clothing was in a disorderly
condition. It seems clear the appellant wanted to go back to sleep after the officer woke her up.
Without doubt, she had consumed a substantial quantity of alcohol and was intoxicated. I agree with
the trial judge there was evidence to support a reasonable inference that there existed a realistic risk
she would wake up and decide to drive her vehicle. The risk of danger was greater because of her
                                                                                                   Page 7




high level of intoxication. Her judgment would be grossly impaired. There was no evidence she had
abandoned her intention to drive and in addition there was no evidence she had made arrangements
for a friend to come to her aid. She may very well have wanted to sleep but the question is for how
long. In my opinion, the risk of danger was real. It was not a speculative "change of mind" risk.
25 In the result, I agree that the Crown established beyond a reasonable doubt that the appellant
was in care or control of her vehicle.
Strip Search
26 At trial, the appellant brought a constitutional challenge alleging that prior to being lodged in a
cell, she was subjected to a strip search in violation of her right under s.8 of the Canadian Charter of
Rights and Freedoms to be secure against unreasonable search. She sought a stay of proceedings
under s.24(1) of the Charter or, in the alternative, an exclusion of evidence pursuant to s.24(2).
27 The constitutional challenge and the trial proper were joined in a blended proceeding. No de-
fence evidence was presented. The appellant filed an affidavit in support of her Charter application
and the Crown elected not to cross-examine her.
28 The appellant submits that the police officer who strip searched her was complying with a
compulsory directive of the Halton Regional Police Service directing that each person who is to be
lodged in a cell must be thoroughly searched prior to incarceration. She argues that the policy is an
abuse of police power and is unlawful because it purports to authorize a search in the absence of
articuable cause. She stresses that the police officer is not entitled to exercise discretion or judgment
when lodging an alleged offender in a cell temporarily. The nature of the offence, the circumstances
of the case and the particular individual who is charged are of no significance. A "thorough search"
is mandatory.
29 At the outset, it must be made clear that the appellant does not complain that she was arbitrar-
ily detained by the police officer. Her complaint is the police officer did not have reasonable
grounds to subject her to a strip search. In essence, she states that the compulsory search pursuant to
inflexible police policy is an abuse of police power and is unlawful.
30 The constitutionality of strip searches incident to arrest was addressed by the Supreme Court
of Canada for the first time in R. v. Golden [2001] 3 S.C.R. 679; (2001), 159 C.C.C. (3d) 449.
31 The Court emphasized that the more intrusive the search, the greater the degree of justification
and constitutional protection that is appropriate. It went on to add that "strip searches are thus inher-
ently 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."
32   The Court approved of the following definition of strip search:

                   ... means the removal or re-arrangement of some or all the clothing of a person so
                   as to permit a visual inspection of a person's private areas, namely genitals, but-
                   tocks, breasts (in the case of a female) or undergarments.
33 The Court held that the state cannot conduct warrantless strip searches unless they are incident
to a lawful arrest and performed in a reasonable manner in circumstances where the police have rea-
sonable and probable grounds for concluding that a strip search is necessary in the particular cir-
cumstances of the arrest.
                                                                                                     Page 8




34 However, the Court was careful to distinguish between strip searches immediately incidental
to arrest and searches related to safety issues in a custodial setting. At paras. 95 to 97, the Court
stated as follows:

                   Strip searches cannot be carried out as a matter of routine police department pol-
                   icy 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 reason-
                   able 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 abu-
                   sively 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 circum-
                   stances of the arrest.

                   It may be useful to distinguish between strip searches immediately incidental to
                   arrest, and searches related to safety issues in a custodial setting. We acknowl-
                   edge the reality that where individuals are going to be entering the prison popula-
                   tion, there is a greater need to ensure that they are not concealing weapons or il-
                   legal drugs on their persons prior to their entry into the prison environment.
                   However, this is not the situation in the present case. The type of 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 ...

                   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] O. J. No.
                   3452 (Q. L.) at paras. 26 -- 27 which involved the 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 indi-
                   vidual 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 ad-
                   dressed on a case-by-case basis and cannot justify routine strip searches of all ar-
                   restees.
35   The following principles are extracted from the Court's decision:

                   -     In order for a strip search to be justified as an incident to arrest, the arrest
                         must be lawful and the search must be related to the reasons for the arrest
                         itself.
                   -     The reasonableness of a search for evidence is governed by the need to
                         preserve the evidence and to prevent its disposal by the arrestee.
                                                                                                    Page 9




                   -      The common law also authorized police to search for weapons as an inci-
                          dent to arrest for the purpose of ensuring the safety of the police, the de-
                          tainee 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 re-
                          veals a possible weapon secreted on the detainee's person or if the particu-
                          lar 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 its person is not sufficient to justify
                          a strip search.
                   -      The fact that the police have reasonable and probable grounds to carry out
                          an arrest does not confer upon them the automatic authority to carry out a
                          strip search, even where the strip search meets the definition of being "in-
                          cident to lawful arrest" ... additional grounds pertaining to the purpose of
                          the strip search are required ... 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.
                   -      In light of the serious infringement of privacy and personal dignity that is
                          an inevitable consequence of a strip search, such searches are only consti-
                          tutionally 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. In addition, the
                          police must establish reasonable and probable grounds justifying the strip
                          search in addition to reasonable and probable grounds justifying the arrest.
                          Where these pre-conditions 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.
36 In R. v. Flintoff (1998), 126 C.C.C. (3d) 321 the Ontario Court of Appeal was very critical of
a compulsory policy of Durham Regional Police Service directing that every person brought into a
police station in custody must be strip searched regardless of the circumstances of the case or the
individual. In that case the accused was arrested for impaired driving and taken to a police station
for breathalyzer tests. Prior to the tests, he was strip searched as part of routine policy and not on the
basis of any circumstances related to the particular case. After the strip search, the accused was
taken to the breathalyzer room and failed the test. The arresting officer observed nothing about the
accused that aroused any suspicion that he had weapons concealed on his person. When the breath
tests were completed, he was served with the appropriate documentation and released on a promise
to appear. He never entered the cell area and the police had no intention at any time to put him in
the cells. He was very co-operative with police. The Court concluded that the strip search conducted
was a flagrant violation of the Charter and an abuse of police power. It was not justified in law and
was a violation of the public's trust in its police forces and is at odds with common decency. The
breach of the Charter was flagrant, deliberate, unjustified and not conducted in good faith. The vio-
lation of the right to be secure against unreasonable search and seizure guaranteed by s.8 of the
Charter would shock reasonable members of the public. The Court excluded the results of the
                                                                                                Page 10




breathalyzer tests under s.24(2) of the Charter. In the result, the accused was acquitted of the "over
80 mgs." charge.
37 In Flintoff, Finlayson J.A. cautioned in the last few sentences of his Reasons for Judgment on
behalf of the Court that "they are not intended to be instructive of police procedures on arrest gener-
ally and in particular with regard to any person who is to be detained in a police cell". Also, he held
a stay of proceedings under s.24(1) of the Charter was not appropriate because it was his opinion
that it was not "one of the clearest of cases". The trial of the impaired driving offence had been ad-
journed in the lower Court until the fate of the "over 80 mgs." charge was finally determined.
Finlayson J.A. permitted the impaired driving charge to go forward stating, "there is no reason why
the offence for which there can be no due process complaint should not proceed on other evidence
available to the Crown".
38 In Golden, the Supreme Court of Canada approved of the distinction drawn by Justice Duncan
in R. v. Coulter between detainees who are about to enter the prison population and releasees who
are to be placed in a cell temporarily and released when they have sobered up to a point it is safe to
do so. Although releasees are placed in a cell, they are not introduced into the general jail popula-
tion.
39 In R. v. Coulter, the accused was charged with impaired driving. After he failed the breath
tests with readings of 215 and 213, the officer in charge of the police station determined that he
would detain the defendant until he was sober. He was strip searched and held in a cell for some six
and one-half hours. The strip search was pursuant to the routine police practice where an arrestee is
being lodged in a cell. Duncan J. concluded that such a strip search was not a justifiable exercise of
power. He held that the need for such highly intrusive searches "has not been demonstrated".
40 Langdon J. heard the appeal in R. v. Coulter, [2001] O.J. No. 5608. He firmly disagreed with
the distinction drawn by Duncan J. between detainees and releasees. He stated, "I am in respectful
but firm disagreement with Duncan J. that such a distinction is meaningful or that it changes the
character of the prisoner's custodial status sufficiently to render unreasonable a search that would be
reasonable if the prisoner were being held for a bail hearing". He went on to hold that "when the
decision is taken to lodge a prisoner in the cells, then a strip search properly conducted cannot be
said to be a violation of the prisoner's s.8 rights even though it is warrantless". However, the judg-
ment of the Supreme Court of Canada in Golden was released some two months after the decision
of Langdon J. and accordingly it would appear that the Supreme Court approved of and adopted the
distinction crafted by Duncan J. This was the conclusion reached by Ferrier J. of our Court in R. v.
Clarke [2003] O.J. No. 3884. Ferrier J. was dealing with police policy of the Toronto Police Service
in force in 2000. The policy was that an officer in charge must ensure that any person who is about
to be lodged in a police cell has been or is subjected to a complete search of the individual's person
for safety reasons. The policy manual provides as follows:

                   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 neces-
                   sary, considering the objective or purpose, and the grounds that exist at the time.
It goes on to provide the full details of all searches shall be recorded in a memorandum book includ-
ing the grounds for the level of search conducted. In the case of a complete search or a body cavity
                                                                                                  Page 11




search, an additional memorandum providing greater information must be prepared, approved of
and signed by the officer in charge.
41 In May 2002, when Peggy Ann Ferguson was strip searched, the approved procedures for the
care, handling, security and detention of persons taken into custody by members of the Halton Re-
gional Police Service were contained in a directive dated December 20, 2000. It provided that an
officer in charge of the station, upon being notified of the arrival of a prisoner, must ensure that the
prisoner is appropriately searched prior to continuing the detention. The directive goes on to say,
"this may involve a frisk search, an electro-magnetic search or thorough search". The directive de-
fines the various searches as follows:

                   Frisk Search: A manual search or patting down of the clothed body with a pri-
                   mary concern for weapons. Involves the touching of the outer layer of clothing
                   against the body by hand. May include a search of headgear, coat, pockets, shoes,
                   socks, personal possessions that the person may be carrying and may extend to a
                   search of the mouth.

                   Electro-magnetic Search: A search conducted utilizing an Electro-magnetic wand
                   to locate metal objects on the person or in clothing. This form of search may be
                   utilized in conjunction with a "Frisk Search" and may provide information that
                   results in a thorough search taking place.

                   Thorough Search: A search of all clothing, things in the clothing, personal pos-
                   sessions that the person may be carrying and includes a visual inspection of the
                   naked body. It may extend to a search of the mouth.
The directive goes on to provide that the officer in charge must ensure that any prisoner being
lodged in a cell is/was subjected to a thorough search prior to initial incarceration to protect police
service members, other prisoners and the accused. The officer in charge is further obliged to note
the circumstances surrounding the search and/or lodging of the prisoner on the arrest report and
prisoner booking sheet.
42 Staff Sergeant Susan Delaney was the officer in charge of the Milton Detachment when the
appellant was brought into the booking room by the arresting officer at approximately 12:15 a.m. on
May 10, 2002. From that point on, she became the responsibility of the officer in charge. Sergeant
Delaney, who was an officer with some 20 years experience, spent more than 20 minutes with the
appellant. Although a frisk search is usually carried out in the booking room by the officer in charge
immediately after the person in custody has arrived, Sergeant Delaney could not recall doing this
and she made no note on the arrest form or booking sheet that she had conducted a frisk search.
43 Sergeant Delaney concluded that the appellant was very drunk. She felt that the appellant was
not capable of looking after herself and, after she learned that the appellant was taking antidepres-
sant medication, Sergeant Delaney believed that it would be necessary to lodge the appellant in a
cell temporarily to permit the effects of alcohol to subside for her own safety.
44 When defence counsel showed Sergeant Delaney the applicable Halton Regional Police Ser-
vice Directive, she indicated that she was familiar with its contents because she had probably read it
some time ago. She maintained, however, and stressed, that the decision to conduct a "thorough
search" of the appellant was her own decision made after an assessment of the appellant's condition.
                                                                                                Page 12




Further, she stated she did not require reasonable and probable grounds to conduct a search. She
believed that a search was a continuation of the arrest and the purpose of the search is to maintain
safety and control.
45 Sergeant Delaney explained that she had an obligation to protect a person in custody and also
to protect herself and other officers. The safety of the appellant was a paramount consideration. She
denied it was her personal policy to strip search all persons being placed in a cell.
46 In essence, Sergeant Delaney said that she wanted to search the appellant thoroughly because
she was very drunk. She learned that the appellant was taking antidepressant medications which she
felt could cause problems if mixed with alcohol. Sergeant Delaney wanted to make sure there was
no chance of anything being ingested by the appellant that could harm her. In addition, although
there was nothing to indicate the appellant had a weapon on her person, Sergeant Delaney felt it was
her duty to protect other officers as well as herself and the appellant from injury caused by any ob-
ject capable of causing harm concealed on her body. She said the appellant was capable of conceal-
ing something on her person.
47 After the appellant failed the breath tests, Sergeant Delaney was informed of the results. Her
decision to lodge the appellant in a cell for a period of time to allow her to sober up was reinforced
by the high readings. Accordingly, Sergeant Delaney strip searched the appellant. The "thorough
search" took place in the booking room outside the eye of the camera. Unfortunately, Sergeant De-
laney failed to make notes on the arrest form and/or booking sheet of the circumstances and nature
of the search conducted. She made no notes or log of what actually took place during the search of
the appellant. The trial judge stated as follows:

                   Sergeant Delaney did not keep a log or notes of the search conducted. Her mem-
                   ory of the search is based on her usual practice.
48 For some reason, the trial judge permitted Sergeant Delaney to testify at length about her usual
practice when it was clear that the veteran officer had no reliable recollection of what actually took
place. This was never more clear than when Sergeant Delaney was outlining some of the metal ob-
jects she had found during the search of a female prisoner's bra. She described how she would go
about touching the bra in order to detect the presence of an object which was or could be used as a
weapon. She told the Court that the female prisoner's shirt would be removed during that stage of
the search. In her affidavit, the appellant stated that she was not required to remove her shirt. Fur-
ther, she said she was not wearing a bra. She deposed that the strip search consisted of removing her
slacks and being required to stand in the presence of two female police officers in her underwear.
When this was brought to her attention, Sergeant Delaney could not recall if the appellant was wear-
ing a bra and could not be certain if the appellant's shirt was in fact removed.
49 There was no evidence that the appellant's purse had been searched to see if there was any an-
tidepressant medication contained therein. As well, there was no evidence that a frisk search was
conducted at any time at the police station although a female officer assisting at the scene of arrest
testified she conducted a pat down search of the appellant.
50 In May 2002, the police stations of the Halton Regional Police Service designated as a lock-up
facility were not equipped with an electro-magnetic wand. There was evidence that electric wands
were subsequently purchased and made available to each lock-up facility sometime in the Spring of
2003.
                                                                                                 Page 13




Trial Judgment
51   In her Reasons for Judgment, the trial judge stated as follows:

                   It seems reasonable to me that a person being placed in the cells, even for a short
                   duration, should not have weapons, even small ones like a razor blade, on their
                   person. Given that the Wand was not available at the time of this strip search, I
                   find that it was not unreasonable to conduct a search that would reveal the pres-
                   ence of this type of object on Ms. Ferguson's person. She was in no condition to
                   take care of herself or use good judgment with respect to her conduct towards
                   others. She was extremely intoxicated and her emotions were volatile, as evi-
                   denced by her mood swings during the breath testing and her conduct in the cells.
52 The trial judge declined to accept the alleged concern of Sergeant Delaney that the appellant
may have had loose antidepressant pills stashed in her undergarments. She stated, "this seems like a
remote possibility. There was nothing in the evidence here to suggest that Ms. Ferguson had loose
pills on her person. I agree with Mr. Taylor that there could have been nothing more than a mere
suspicion that this was the case".
53 In the result, the trial judge held that the search was reasonable and justified to detect metal
objects which either were or could be used as a weapon to cause harm to the appellant or others she
might come in contact with at the station. In other words, it was a safety justification.
Analysis
54 The trial judge did not address head on the appellant's submission that the search was pursuant
to a compulsory routine police policy. Rather, she seemed to focus on Sergeant Delaney's expressed
reasons for conducting the strip search prior to lodging the appellant in the cell and reviewed in her
Reasons for Judgment the ambiguous and unsatisfactory evidence of Sergeant Delaney who specu-
lated, surmised and assumed what she actually did during the search.
55 Sergeant Delaney appeared reluctant to admit she was in any way influenced by the directive
of the Halton Regional Police Service which was operative at that time. However, it seems to me
that the fact she made no notes of what actually took place during the search and in fact made no
note that a complete search was actually carried out suggests that the search was actually routine.
56 In Golden, the Supreme Court of Canada made it abundantly clear that "strip searches cannot
be carried out as a matter of routine police departmental policy applicable to all arrestees, whether
they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics."
The Court went on to add "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 circum-
stances of the arrest.
57   Finally, the key comments applicable to the present case are as follows:

                   The type of 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 ...
                                                                                                  Page 14




58 The Supreme Court went on to state that although police officers may have legitimate con-
cerns that short term detainees will conceal weapons, such concerns must be addressed on a case-
by-case basis and cannot justify routine strip searches of all arrestees.
59 There is no doubt that the policy of the Halton Regional Police Force was to compel a "thor-
ough search" (i.e. "strip search") of any prisoner being lodged in a cell. In the absence of unequivo-
cal evidence that Sergeant Delaney refused to comply with the policy of her police force, it is my
opinion that it must be assumed she acted in accordance with a duty imposed upon her.
60 I am not able to agree with the trial judge that the search was reasonable in order to detect ob-
jects such as razor blades on the person of the appellant which could cause harm to her or others
during detention in a cell in the lock-up facility. It is my view that the mere possibility that an indi-
vidual may be concealing objects on her person is not sufficient to justify a strip search in these cir-
cumstances.
61 The trial judge found that Sergeant Delaney was acting in good faith because her intentions
were to protect the prisoner from self-harm and to protect officers in the station. As pointed out ear-
lier, the appellant does not object to the fact she was detained at the police station for her own pro-
tection. She was released by the officer in charge on a promise to appear after less than two hours in
the cells. Unquestionably, Sergeant Delaney made a decision to detain the appellant which was in
the public interest as well as for the appellant's own benefit and safety.
62 In my opinion, the fact that she was properly detained to allow her to sober up somewhat does
not automatically justify a strip search. I conclude that the strip search conducted on the appellant
was unreasonable because there was no articuable cause for beginning with a strip search without
resorting first of all to a "frisk" or "pat down" search followed by an electro-magnetic search.
63 The appellant was 51 years of age at the time and an English instructor at a local college. She
had no prior criminal record. There was a duty on the officer in charge to make a determination on
the facts of this particular case whether there was articuable cause or reasonable suspicion that the
appellant was concealing objects on her person that could cause harm to herself or others. Unfortu-
nately, we have very little information about the nature of the search other than what the appellant
stated in her affidavit. She said that she was required to remove her pants and stand in her under-
wear in the presence of the two female police officers. She said she was not wearing a bra and was
not asked to remove her loose fitting shirt she wore under the jacket of her pantsuit. Sergeant De-
laney testified it was her usual practice to ask the arrestee to stretch the upper part of the underwear
in order to discover concealed loose objects.
64 The trial judge seemed to be influenced by the fact that an electro-magnetic wand was not
available to Sergeant Delaney. It is my opinion that this should have no bearing on the issue of
whether the search was reasonable and justified in the particular circumstances. Electro-magnetic
wands have been available for years and the fact that the Halton Regional Police Service did not
provide wands to the lock up facilities should not be used as a basis for justifying a strip search.
65 I conclude that there must be some foundation established before a strip search of an individ-
ual being lodged in a cell temporarily is justified. The police officer should routinely "frisk search"
the arrestee. Thereafter, an electro-magnetic search would not be particularly intrusive and would
not call for a high level of justification. In the absence of evidence that any steps were taken prior to
the strip search, it is my respectful view that it was unreasonable for the trial judge to conclude that
the strip search was justified because of a speculative concern that the appellant might be conceal-
                                                                                                   Page 15




ing a dangerous object on her person. A "frisk" search or electro-magnetic search is not intrusive. If
either or both of those searches provided some evidence to support a reasonable suspicion (ar-
ticuable cause) that the appellant could be concealing a dangerous object, that might be sufficient
foundation to permit the police to conduct the more intrusive "strip" search.
66 In order for the Crown to establish on a balance of probabilities that the particular search did
not violate s.8 of the Charter, the search must be reasonable. Articuable cause or reasonable suspi-
cion is a modest threshold to protect an individual being lodged in a cell temporarily from an intru-
sive and humiliating strip search.
67 It will remain to be seen if appellate courts or the Supreme Court of Canada consider that a
search of an individual being lodged in a cell in a lock-up facility is a search incident to arrest or is
rather more appropriately regarded as ancillary to the power to detain pursuant to a lawful arrest.
Remedy
68 The trial judge concluded in the alternative that if the strip search was unreasonable, there was
no basis for a stay of proceedings under s.24(1) or exclusion of evidence under s.24(2) of the Char-
ter. I agree.
69 The evidence was not "obtained in a manner that infringed or denied any rights or freedoms
guaranteed by" the Charter. There was no causal or temporal connection between obtaining the evi-
dence and the unreasonable strip search of the appellant before she was lodged in the cells. If what
occurred in Flintoff was not "one of the clearest of cases" it could hardly be said that the strip search
of the appellant in this case qualified.
70   As pointed out by the Supreme Court in Golden (see para. 89),

                   Given that the purpose of s.8 of the Charter is to protect individuals from unjusti-
                   fied state intrusions upon their privacy, it is necessary to have a means of pre-
                   venting unjustified searches before they occur, rather than simply determining af-
                   ter the fact whether the search should have occurred ... The importance of pre-
                   venting unjustified searches before they occur is particularly acute in the context
                   of strip searches, which involve a significant and very direct interference with
                   personal privacy. Furthermore, strip searches can be humiliating, embarrassing
                   and degrading for those who are subject to them, and any post facto remedies for
                   unjustified strip searches cannot erase the arrestee's experience of being strip
                   searched.
71 I am not able to conclude on the facts of this case that a remedy under s.24 of the Charter is
available to the appellant. It may be that legislation is needed, as was the case in the United King-
dom, to directly address strip searches incident or ancillary to a lawful arrest. Ideally, legislation
would set forth guidelines and provide an appropriate sanction for what is determined to be an in-
trusive search which is unreasonable and without justification.
72 In the result, notwithstanding I have concluded that the strip search of the appellant violated
her right under s.8 of the Charter to be secure from unreasonable search, a remedy is not available
to her under s.24 of the Charter.
73 For these reasons, the appeal against conviction on the charge of impaired care or control of
the motor vehicle is dismissed.
                         Page 16




R.G. THOMAS J.
cp/e/qlplh/qlkjg/qlbdp

				
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