2009 CarswellOnt 3351
HER MAJESTY THE QUEEN AND JUBER AHMED CHOWDHURY
ONTARIO COURT OF JUSTICE
BORENSTEIN J.
HEARD: MAY 25, 2009
JUDGMENT: JUNE 10, 2009
DOCKET: NONE GIVEN.
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Counsel: Ms Melissa Mandel, for Crown
Mr. Lorne Sabsay, for Accused, Juber Ahmed Chowdhury
Subject: Criminal; Constitutional
Criminal law --- Charter of Rights and Freedoms - Charter remedies [s. 24] - Stay of proceedings
Unlawful strip search - Accused charged with "over 80" - Accused was arrested, subjected to "part-down" search, and transported to police detachment where inter alia accused provided Intoxilyzer samples - Subsequent to provision of samples, accused was brought back to cell where, prior to his release on appearance notice, accused was subjected to strip search - Accused brought application at trial for judicial stay of proceedings on basis that strip search was unlawful and impaired accused's right to be secure against unreasonable search or seizure - Application granted and proceedings stayed - Strip search appeared to have been ordered as part of "standing" policy to strip search all inmates of holding cell - In present case, accused had already been subjected to "pat-down" search and no reason existed to believe that any fruitful result would arise from strip search - In totality of circumstances, search was unlawful and constituted breach of accused's Canadian Charter of Rights and Freedoms s. 8 right - Breach was significant and in present case extreme remedy, stay of proceedings, was justified.
Cases considered by Borenstein J.:
R. v. Golden (2001), 2001 CarswellOnt 4301, 2001 SCC 83, 2001 CarswellOnt 4253, 207 D.L.R. (4th) 18, 279 N.R. 1, 47 C.R. (5th) 1, 159 C.C.C. (3d) 449, [2001] 3 S.C.R. 679, 153 O.A.C. 201, 89 C.R.R. (2d) 271 (S.C.C.) - followed
Statutes considered:
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
s. 8 - referred to
s. 24(1) - referred to
APPLICATION by accused for judicial stay of proceedings occasioned by allegedly unlawful strip search.
Borenstein J. :
1 This case deals with whether a strip search was justified.
2 Strip searches are inherently humiliating. Nonetheless, they can be justified. The question in this case is whether the strip search of Mr. Chowdhury that occurred was a violation of Mr. Chowdhury's right to be secure against unreasonable search and seizure. If so, the next question is whether the stay of proceedings sought by the defence is justified.
3 On March 5, 2008, at around 3:45 in the morning, the police came upon Mr. Chowdhury who was asleep in his car. They assessed the situation and determined that he should be arrested for impaired care and control. He was arrested at the scene and taken to the police station. Prior to leaving the scene, he was searched to ensure that he did not have any weapons or objects that could hurt himself or others. He did not. From the time of his arrest, until he was released from the station at about noon on a promise to appear, he was in the continuous police custody.
4 Once at the station, Mr. Chowdhury was brought before the booking sergeant where his arrest was explained and his rights were read. This exchange was videotaped and the videotape was made an exhibit. At this time, Mr. Chowdhury was again searched, his valuables were removed and sealed and his shoelaces were taken off. The arresting officer advised the staff sergeant that Mr. Choudhury had been subjected to a Level 2 search (which is more invasive than a pat down search) and that there was no reason to conduct a Level 3 search. A Level 3 search is a strip search.
5 I have viewed the video and Mr. Chowdhury can only be described as extremely polite and co-operative in his dealings with the police.
6 He eventually provided two breath samples to the police and was over the limit. I have been advised that his blood alcohol concentration was 187 and 176 milligrams of alcohol per 100 millitires of blood.
7 After providing these samples, the police decided to lodge Mr. Chowdhury in a police holding cell at the station for several hours before releasing him. That turned into a six-hour detention. Mr. Chowdhury asked to be allowed to call a cab and go home. The police refused. Mr. Chowdhury was placed in a cell by himself. Prior to placing Mr. Chowdhury in the cell, he was brought into a room by two police officers and told to remove all of his clothing. Although the staff sergeant who decided to have Mr. Chowdhury strip searched did not testify, the arresting officer did testify that it is the routine policy of the Toronto Police Service to strip search anyone being placed in a holding cell, evidently even if placed in a cell by themselves for a few hours.
8 Mr Chowdhury gave evidence describing the strip search. He was 27 years old at the time of his arrest and had no criminal record. I infer that the police conducted checks on Mr. Chowdhury at the station and were aware that he had no prior record.
9 Mr. Chowdhury testified that he was brought into a room. He was told to remove all of his clothing. Once completely naked, he was told to turn around, put his hands on his knees and bend over allowing a visual search. He testified that he felt humiliated and I accept that evidence. The strip search occurred even thought Mr Chowdhury was cooperative, had no record and had already been subjected to a Level 2 search. It occurred because it is a blanket policy of the Toronto Police Service to strip search people being placed in holding cells.
10 Mr. Chowdhury was alone in a holding cell the entire time until he was released at around noon.
11 The arresting officer was unsure how many separate holding cells there were at the police station but thought there were twelve. Mr. Choudhury was in one on his own. He was going to be released from the station and there was no intention to bring him to Court in the morning. He would therefore not be going to the court cells or a transport vehicle. There was no evidence whether there were other prisoners in holding cells that night.
12 The defence argues the strip search was a violation of section 8 of the Canadian Charter of Rights and Freedoms. Further, the defence argues that this policy reflects a institutional disregard for the rights of Mr Chowdhury, and others, and a disregard for the Supreme Court's decision on this practice. The defence seeks a stay.
13 The Crown agrees that the strip search violated Mr. Chowdhury's right to be secure against unreasonable search but argues a stay is not warranted. It is too great a remedy.
14 Strip searches represent one of the most invasive and potentially humiliating forms of police powers of search. They can be degrading and humiliating. Nonetheless, they can be justified when necessary.
15 More than ten years ago, the Supreme Court of Canada in R. v. Golden [ 2001 CarswellOnt 4301 (S.C.C.)] considered the issue of strip searches in the context of a roadside strip search. The Supreme Court had this to say about strip searches:
... it is unquestionable that they represent a significant invasion of privacy are often a humiliating, degrading and traumatic experience for individuals subject to them
The Court pointed out that even the most sensitively conducted strip search is highly intrusive. Nonetheless, they may be justified depending on the circumstances.
16 It should be obvious that being arrested, particularly for a first offender, can be a very intimidating experience. Nonetheless, arrests happen and there is a common law power to search incident to lawful arrest. However, just because the police have the power to arrest, and search incident to arrest, this does not entitle them to enact a blanket policy that anyone placed briefly in a holding cell, on his or her own, will be forced to strip in front of two officers. There must be a specific assessment of whether a strip search is necessary.
17 Returning to the Supreme Court decision in Golden , the Court stated:
The importance of preventing 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.
18 When it comes to strip searches, the Supreme Court stated clearly that they cannot be carried out as a matter of policy. They may be justified but given the demeaning and degrading nature of a strip search, the police are required to assess the circumstances to determine whether a strip search is needed in the circumstances. A strip search cannot be justified on the basis that it is simply the policy to strip search everyone being lodged in the cells.
19 The Supreme Court rejected the argument that a warrant had to be obtained before conducting a strip search but held that, given the highly invasive nature of strip searches, the was a greater the need for justification for the search. The Court held that strip searches could not be carried out simply as a matter of routine policy.
20 The authority to search incident to lawful arrest is motivated by the need to preserve evidence and the authority to search for weapons to ensure safety.
21 The Supreme Court held that it is only if the frisk search reveals a weapon, or the circumstances reveal the possibility of a weapon, then a further strip search be justified.
22 Ultimately, even a sensitively carried out strip search would violate section 8 unless there was a compelling reason for performing the strip search.
23 There is an argument that people entering custodial institutions have a lesser expectation of privacy and there is a need to ensure that drugs or weapons are not brought into a jail. The Supreme Court in Golden specifically acknowledged the potential need for more invasive searches, including strip searches, before prisoners enter custodial settings to ensure they are not bringing in drugs or weapons. However, the Court was alive to the fact that could not automatically be used to justify strip searches, as a matter of policy, of someone held briefly in a holding cell in the police station where they are not being commingled with the prison population. As the Court stated:
...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 the police, such as intoxicated individuals held overnight in police cells.
24 In summary, the Court specifically considered the situation of people like Mr. Chowdhury who were being detained briefly in holding cells. The Court held that routine strip searches of those people was not permissible. An individualized assessment was required.
25 The police must assess the situation and determine whether a strip search is necessary.
26 In this case, Mr. Chowdury was arrested in his car and was in continuous police custody until his eventual release. He was given a pat-down search at the scene and another search when he was paraded before the staff sergeant.
27 There is nothing in this case to even suggest that Mr. Chowdhury was concealing weapons or drugs and, in any event, I heard no such evidence that was even suspected much less the basis for the search. The search was purely based on police policy: a policy that flies in the face of the ruling of the Supreme Court of Canada issued more than a decade earlier.
28 There was no individualized assessment of whether a search was required. It was done because it was he was placed in the cells.
29 This was a clear and serious breach of Mr. Chowdhury's rights. It is no less serious because they officers were polite.
30 Mr. Chowdhury was lawfully arrested. The decision to place him in the cells was not alleged to be unreasonable. However, there was no reasonable justification for having him remove all of his clothes, stand there naked in front of two officers, place his hands on his knees and bend forward for examination. There was nothing in the evidence, or even in the circumstances, that would justify a concern that he was concealing weapons or drugs. I heard no such reason much less attempt to justify such conduct.
31 The onus is on the Crown to justify this strip search. Not only was the Crown unable to offer a justification for the strip search, it, they could offer no explanation other than one that violates the clear pronouncement of the Supreme Court which states that strip searches cannot be justified on the basis of routine. The Crown wisely conceded that the search in this case violates s. 8 of the Charter.
32 The only issue is whether to grant a remedy under s. 24(1).
33 The defence seeks a stay. The crown argues that a stay is not warranted.
34 A stay is the most severe remedy. It is a remedy of last resort. It is to be granted only in the clearest of cases. In my view, this is one such case.
35 In my view, this violation is most serious. This policy resulted in an invasive violation of Mr. Chowdhury's privacy and his dignity. It was done completely without justification and in the face of a clear admonition by the Supreme Court.
36 Perhaps, a strip search would be justified if Mr. Chowdhury was going to be placed in a holding cell with other prisoners. I heard no evidence that was even a possibility that night. There were potentially a dozen empty cells. The strip search was conducted simply as a result of a routine policy, despite the fact that the Courts have expressly told the police that they could not have a policy of conducting strip searches. This was institutional indifference to the rights of Mr. Chowdhury and to the clear admonition from the Court.
37 Any lesser remedy in my view would minimize the nature and impact of the violation that occurred. Further, it would not send a clear message to the police that they must stop this policy. This violation is more severe given that it stems from an institutional indifference to the rights of arrestees and to the limits placed on police discretionary powers by the Courts. The police are vested with significant powers of search, including the power to strip search where necessary. To enact a policy where every detainee held in a holding cell will be stripped naked is an abuse of that authority and requires the most serious criticism by the Court. The systemic nature of this violation makes this violation more, not less, serious.
38 In my view, the continued prosecution of Mr. Chowdhury, in light of the violation that occurred, would cause irreparable prejudice to the integrity of the judicial system.
39 In light of these reasons, I order the proceedings against Mr. Chowdhury stayed.
Application granted.
END OF DOCUMENT
