R. v. Golden

R. v. Golden
Collection
Supreme Court Judgments
Date
2001-12-06
Neutral citation
2001 SCC 83
Report
[2001] 3 SCR 679
Case number
27547
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 27547
Decision Content
R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83
Ian Vincent Golden Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario,
the Aboriginal Legal Services of Toronto,
the Canadian Association of Chiefs of Police,
the African Canadian Legal Clinic, and
the Canadian Civil Liberties Association Interveners
Indexed as: R. v. Golden
Neutral citation: 2001 SCC 83.
File No.: 27547.
2001: February 15; 2001: December 6.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Right to be secure against unreasonable search and seizure -- Search incident to arrest -- Strip search of accused in public place resulting in seizure of crack cocaine -- Whether strip search infringed accused’s right to be secure against unreasonable search and seizure -- Canadian Charter of Rights and Freedoms, s. 8 .
Criminal law -- Search and seizure -- Search incident to arrest -- Strip search of accused in public place resulting in seizure of crack cocaine -- Whether scope of common law “search incident to arrest” power broad enough to encompass authority to strip search arrested individual -- If so, whether common law reasonable -- Whether strip search of accused was carried out in reasonable manner.
Police officers set up an observation post in an unoccupied building across from a sandwich shop, in an effort to detect illegal drug activity in an area where trafficking was known to occur. One of the officers observed G, who was in the shop, and testified that he saw two transactions in which persons entered the shop and received a substance from G. The officer testified that given the place where this transaction occurred, the manner in which it took place, and the colour of the substance, he believed the substance was cocaine and that G was trafficking in drugs, and he instructed the take‑down officers to arrest G. During the arrests, the police found what they believed to be crack cocaine under the table where one of the suspects was arrested and G was observed crushing what appeared to be crack cocaine between his fingers.
Following the arrests, a police officer conducted a “pat down” search of G and did not find any weapons or narcotics. The officer then decided to conduct a visual inspection of G’s underwear and buttocks on the landing at the top of the stairwell leading to a basement where public washrooms were located. The officer undid G’s pants and pulled them back along with G’s long underwear. The officer saw a clear plastic wrap protruding from between G’s buttocks, as well as a white substance within the wrap. The officer tried to retrieve the plastic wrap, but G “hip‑checked” and scratched him. G was then escorted to a seating booth at the back of the shop. The officers forced him to bend over a table and his pants were lowered to his knees and his underwear was pulled down. The officers tried to seize the package from his buttocks, but were unsuccessful. Following these attempts, G accidentally defecated; however, the package did not dislodge. An officer then retrieved a pair of rubber dishwashing gloves and again tried to remove the package while G was face‑down on the floor, with another officer holding down his feet. Finally, the officer was able to remove the package once G unclenched his muscles. It contained 10.1 grams of crack cocaine. G was placed under arrest for possession of a narcotic for the purpose of trafficking, and for police assault. He was strip searched again at the police station, fingerprinted and detained pending a bail hearing.
On a voir dire hearing, G applied to have the evidence obtained from the search excluded under ss. 8 and 24 of the Canadian Charter of Rights and Freedoms . The application was denied, and the evidence was admitted. G was found guilty of possession of a narcotic for the purpose of trafficking, but acquitted on the police assault charge. The Court of Appeal dismissed his appeal from his conviction and sentence.
Held (McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be allowed. The accused’s conviction should be overturned and an acquittal entered.
Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable. Given that the purpose of s. 8 of the Charter is to protect individuals from unjustified state intrusions upon their privacy, it is necessary to have a means of preventing unjustified searches before they occur, rather then simply determining after the fact whether the search should have occurred.
The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches. Strip searches are inherently 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. 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 “incident to lawful 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 constitutionally 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, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by the detainee. In addition to reasonable and probable grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search. Where these preconditions 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 . If there is no prior judicial authorization for the strip search, several factors should be considered by the authorities in deciding whether, and if so how, to conduct such a procedure. Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported there. Clear legislative prescription as to when and how strip searches should be conducted would be of assistance to the police and to the courts.
The common law of search incident to arrest, which permits strip searches, does not violate s. 8 of the Charter . The common law rule ensures that such searches are only carried out where the police establish reasonable and probable grounds for a strip search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested. Furthermore, the factors set out ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible. Attention to these issues will also ensure that the proper balance is struck between the privacy interests of the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring the safety of police officers, detained persons and the public.
While in this case the arrest was lawful and the strip search was related to the purpose of the arrest, the Crown has failed to prove that the strip search was carried out in a reasonable manner. 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, and the decision to strip search was premised largely on a single officer’s hunch, arising from a handful of personal experiences. The police officers’ decision to strip search G in the restaurant was accordingly unreasonable. Moreover, the manner in which the strip search was conducted in the restaurant did not comply with the requirements of reasonableness contained in s. 8 of the Charter . G was not given the opportunity to remove his own clothing; the strip search was conducted without notice to, or authorization from, a senior officer; and the search was carried out in a manner that may have jeopardized G’s health and safety. Where the circumstances of a search require the seizure of material located in or near a body cavity, either the individual being searched should be given the opportunity to remove the material himself, or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. Further, if the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. In this case, G’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances.
Since the accused has already served his 14‑month sentence in full, it is neither necessary nor useful for this Court to determine whether the evidence deriving from the illegal strip search should have been excluded at trial. It is preferable to rest our disposition on the premise that the courts below erred in finding the strip search of the accused reasonable in the circumstances and consistent with s. 8 of the Charter and consequently erred in allowing the impugned evidence to be admitted.
Per McLachlin C.J. and Gonthier and Bastarache JJ. (dissenting): The common law does not require police to prove that they had reasonable and probable grounds to justify a strip search. The existing common law rule that police demonstrate an objectively valid reason for the arrest rather than for the search is consistent with s. 8 of the Charter , provided that the strip search is for a valid objective and is not conducted in an abusive fashion. The common law requirements that the evidence sought be related to the reason for the arrest and that the search be conducted in a manner that is not abusive apply to protect accused persons from indiscriminate or unreasonable searches regardless of whether the search occurs at the station or in the field. The discovery of evidence should thus not be postponed to a time where the search can take place at a police station. Police officers are not always close to a station; they operate in remote areas and are often alone. The proposed rule that all strip searches proceed at a police station absent exigent circumstances should be left to Parliament.
The searches must be looked at individually and justified according to the circumstances applicable to each of them. The first search was perfectly justified as the reasonable and probable grounds for the arrest provided the authority to search for evidence related to the crime and the manner in which the search was conducted was not abusive. The second search did violate G’s s. 8 rights as the police had actual knowledge that G was in possession of what was thought to be narcotics, providing a greater opportunity to ensure that the evidence would not be lost before reaching the station. In addition, G’s refusal to give up the evidence meant that it could be seized at the scene only if the police conducted the strip search in less than private conditions and applied a degree of force which may not have been necessary had the search been conducted at the station. Given these circumstances, the police should have concluded that close custody and immediate transfer to the station were the appropriate means of pursuing the ends of justice. However, a s. 24(2) analysis shows that the administration of justice would not be brought into disrepute by admitting the object of the search.
Per L’Heureux‑Dubé J. (dissenting): Bastarache J.’s reasons were agreed with, subject to the following comment. One factor in assessing the reasonableness of a relatively intrusive search, such as the strip search carried out in this case, is the existence of reasonable and probable grounds to justify the search. While that factor was established in this case, the second search violated s. 8 of the Charter for the reasons given by Bastarache J.
Cases Cited
By Iacobucci and Arbour JJ.
Distinguished: Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney, [1999] 1 S.C.R. 652; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Leigh v. Cole (1853), 6 Cox C.C. 329; Bessell v. Wilson (1853), 17 J.P. 52; Adair v. M’Garry, [1933] S.L.T. 482; Lindley v. Rutter, [1980] 3 W.L.R. 660; R. v. Naylor, [1979] Crim. L.R. 532; United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973); Illinois v. Lafayette, 462 U.S. 640 (1983); Schmerber v. California, 384 U.S. 757 (1966); Giles v. Ackerman, 746 F.2d 614 (1984); State v. Audley, 894 P.2d 1359 (1995); Swain v. Spinney, 117 F.3d 1 (1997); Nurse v. Canada (1997), 132 F.T.R. 131; Blouin v. Canada (1991), 51 F.T.R. 194; Gottschalk v. Hutton (1921), 36 C.C.C. 298; R. v. McDonald (1932), 59 C.C.C. 56; Yakimishyn v. Bileski (1946), 86 C.C.C. 179; R. v. Brezack (1949), 96 C.C.C. 97; Re Laporte and The Queen (1972), 8 C.C.C. (2d) 343; Reynen v. Antonenko (1975), 20 C.C.C. (2d) 342; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Morrison (1987), 35 C.C.C. (3d) 437; R. v. Ferguson (1990), 1 C.R. (4th) 53; R. v. Flintoff (1998), 16 C.R. (5th) 248; R. v. Stott, [1997] O.J. No. 5449 (QL); R. v. K.D.S. (1990), 65 Man. R. (2d) 301; R. v. Miller, [1993] B.C.J. No. 1613 (QL); R. v. King, [1999] O.J. No. 565 (QL); R. v. Kalin, [1987] B.C.J. No. 2580 (QL); RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Pan, [2001] 2 S.C.R. 344, 2001 SCC 42; R. v. Christopher, [1994] O.J. No. 3120 (QL); R. v. Toulouse, [1994] O.J. No. 2746 (QL); R. v. Coulter, [2000] O.J. No. 3452 (QL); R. v. Garcia‑Guiterrez (1991), 5 C.R. (4th) 1.
By Bastarache J. (dissenting)
R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Cloutier v. Langlois, [1990] 1 S.C.R. 158; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136; United States v. Robinson, 414 U.S. 218 (1973); R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51.
By L’Heureux‑Dubé J. (dissenting)
R. v. Stillman, [1997] 1 S.C.R. 607.
Statutes and Regulations Cited
Cal. Penal Code § 4030 (West 2000).
Canadian Charter of Rights and Freedoms, ss. 8 , 24 .
Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code of Practice C), Annex A.
Colo. Rev. Stat. Ann. § 16‑3‑405 (West 1998).
Competition Act, R.S.C. 1985, c. C‑34, s. 15 .
Crimes Act 1914 (Austl.), Part 1AA, c. 3C, s. 1 “strip search”.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 254(3) , 487 , 487.04 to 487.09 .
Customs Act, R.S.C. 1985, c. 1 (2nd Supp .), s. 98 .
Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I‑3, s. 7 .
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60.
Public Inquiries Act, R.S.O. 1990, c. P.41, s. 17.
Wash. Rev. Code Ann. § 10.79.070(1) (West 1990).
Wildlife Act, R.S.B.C. 1996, c. 488, ss. 92 [am. 1999, c. 24, s. 21], 93(c).
Authors Cited
Canada. Commission of Inquiry into Certain Events at the Prison for Women in Kingston. The Prison for Women in Kingston. Toronto: The Commission of Inquiry, 1996.
Canada. Law Reform Commission of Canada. Report on Recodifying Criminal Procedure, vol. 1. Ottawa: The Commission, 1991.
Canada. Law Reform Commission of Canada. Working Paper 30. Police Powers ‑- Search and Seizure in Criminal Law Enforcement. Ottawa: The Commission, 1983.
Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: Royal Commission on Aboriginal Peoples, 1996.
Canada. Task Force on the Criminal Justice System and Its Impact on the Indian and Metis People of Alberta. Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta, vol. II. Edmonton: The Task Force, 1991.
Cohen, Stanley A. “Search Incident to Arrest” (1989‑90), 32 Crim. L.Q. 366.
Cohen, Stanley A. “Search Incident to Arrest: How Broad an Exception to the Warrant Requirement?” (1988), 63 C.R. (3d) 182.
Corpus Juris, vol. V. New York: American Law Book, 1916.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 3, 3rd ed. St. Paul, Minn.: West Publishing Co., 1996.
Lyons, Jeffrey S. Toronto Police Services Board Review. Search of Persons Policy -- The Search of Persons -- A Position Paper, April 12, 1999.
Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People.Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People. Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991.
Newman, Dwight. “Stripping Matters to Their Core: Intrusive Searches of the Person in Canadian Law” (1999), 4 Can. Crim. L.R. 85.
Ontario. Commission on Systemic Racism in the Ontario Criminal Justice System. Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. Toronto: The Commission, 1995.
Shuldiner, Paul R. “Visual Rape: A Look at the Dubious Legality of Strip Searches” (1979), 13 J. Marshall L. Rev. 273.
Stuart, Don. Charter Justice in Canadian Criminal Law, 3rd ed. Scarborough, Ont.: Carswell, 2001.
Toronto Police Service. Policy & Procedure Manual: Search of Persons, Arrest & Release, July 1999.
APPEAL from a judgment of the Ontario Court of Appeal, [1999] O.J. No. 5585 (QL), affirming the decision of the Ontario Court (General Division), [1998] O.J. No. 5963 (QL). Appeal allowed, McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting.
David M. Tanovich, for the appellant.
J. W. Leising and Morris Pistyner, for the respondent.
Michael Bernstein, for the intervener the Attorney General for Ontario.
Kent Roach and Kimberly R. Murray, for the intervener the Aboriginal Legal Services of Toronto.
David Migicovsky and Lynda Bordeleau, for the intervener the Canadian Association of Chiefs of Police.
Donald McLeod and Julian K. Roy, for the intervener the African Canadian Legal Clinic.
Frank Addario and Jonathan Dawe, for the intervener the Canadian Civil Liberties Association.
The reasons of McLachlin C.J. and Gonthier and Bastarache JJ. were delivered by
1 Bastarache J. (dissenting) -- This case is not about the determination of the scope of a free-standing right to privacy. It simply concerns the reasonability of a specific search executed without a warrant, in the context of a defence under s. 8 of the Canadian Charter of Rights and Freedoms . While this Court recognizes that s. 8 protects an individual’s reasonable expectation of privacy, it also recognizes that the expectation is one that must be balanced against the competing interest of law enforcement; see R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Cloutier v. Langlois, [1990] 1 S.C.R. 158. Following the adoption of the Charter and the articulation therein of the right to be secure against unreasonable search and seizure, this Court established a general presumptive requirement obligating law enforcement authorities to obtain a warrant before conducting a search; see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. Nevertheless, several exceptions to the general presumption that prior authorization is required exist; see R. v. M. (M.R.), [1998] 3 S.C.R. 393. Among the exceptions recognized by this Court as constitutionally valid is the long-standing common law authority to search incident to arrest without prior authorization; see R. v. Beare, [1988] 2 S.C.R. 387, and Cloutier, supra. The particular circumstances of this case do not require a new definition of this broad common law exception, but rather require a closer examination of the prerequisites for the reasonable exercise of this power when the nature of the search, in this case a strip search, affects more directly the privacy interests of the accused. The privacy interest is upheld not by removing or limiting the actual authority to search, but rather by ensuring the reasonableness of the search.
2 My colleagues Iacobucci and Arbour JJ. have provided the factual background and summarized the decisions at trial and on appeal. They have also given a thorough description of the historical development of the right to search incidental to an arrest. I need not return to this. I would however note that the law has not categorized personal searches according to the degree of intrusiveness of the search. The same requirements justifying the conduct of a search incident to arrest apply regardless of whether the accused is subjected to a “frisk”, a fingerprinting, the taking of a bodily sample or a strip search. These requirements were summarized by my colleagues (at para. 75) and include that the search be carried out for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence, and that it not be conducted in an abusive fashion. In addition, the power to search incident to arrest is a discretionary one and need not be exercised where police are satisfied that the law can be effectively and safely applied in its absence; see Cloutier, supra, at p. 186.
3 The unworkability of an approach that would create distinct categories of searches rests in the fact that all of the types of searches listed above may take many forms ranging from a low degree of intrusiveness to a high degree of intrusiveness, depending on the circumstances of the case. For example, on the facts of this case, the strip search of the accused which occurred in the stairwell was possibly not more intrusive than “pat-down” or frisk searches. By contrast, the search in the restaurant impacted more severely on the privacy and dignity of the accused. The standard of justification to which police will be held depends on the circumstances of the specific search in question, not upon the category into which it is placed.
4 An approach which would categorize searches according to the degree of intrusiveness also risks confusion. The taking of a hair or other easily obtainable bodily sample may seem no more intrusive than a full strip search. The taking of a hair sample in the absence of a warrant may nonetheless be found to violate s. 8 if police are not able to justify the search on the basis that it was for the purpose of discovering and preserving evidence or seizing weapons incident to arrest; see R. v. Stillman, [1997] 1 S.C.R. 607. By contrast, a strip search conducted in the absence of prior authorization may be lawful if it meets the common law requirements of a search incident to arrest even if the search was very intrusive.
5 In all cases, providing the arrest is lawful and the object of the search is related to the crime, the sole issue is the reasonability of the search. My colleagues assert that the fact that police have reasonable and probable grounds to carry out an arrest does not confer on them the authority to carry out a strip search, even where the strip search is related to the purpose of the arrest. They add an additional requirement in the case of strip searches that the police must establish reasonable and probable grounds justifying the conduct of the strip search itself. By placing strip searches in a category distinct from other types of searches, my colleagues have bypassed this Court’s decision in Cloutier, supra, at pp. 185-86, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a police power to search. I agree with my colleagues that the more intrusive the search and the higher the degree of infringement of personal privacy, the higher degree of justification; however, I disagree that the common law requires police to prove that they had reasonable and probable grounds to justify the strip search. Interpreting the common law in a manner consistent with Charter principles does not require the Court to redefine the common law right by adding this additional requirement. The existing common law rule that police demonstrate an objectively valid reason for the arrest rather than for the search is consistent with s. 8 of the Charter , provided that the strip search is for a valid objective and is not conducted in an abusive fashion.
6 The common law right to search incidental to an arrest is justified in part by the need to discover and preserve evidence. The courts have long acknowledged that the effectiveness and the legitimacy of the law enforcement system depends on the ability of police to find and preserve relevant evidence which may assist in the investigation and prosecution of the accused: see Cloutier, supra; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont. H.C.J.); Beare, supra. My colleagues would severely limit the availability of this justification for strip searches by requiring police officers to conduct all strip searches at the police station. I do not agree that the discovery of evidence should be postponed to a time where the search can take place at a police station. The common law requirements that the evidence sought be related to the reason for the arrest and that the search be conducted in a manner that is not abusive apply to protect accused persons from indiscriminate or unreasonable searches regardless of whether the search occurs at the station or in the field.
7 The fear that evidence may be destroyed or lost before arriving at the police station is genuine. The common law rules must have regard to the realities of the situation. Police officers are not always close to a station. They operate in remote areas and are often alone. In my view, the argument that the risk of the detainee getting rid of the evidence is minimal is as unrealistic as the belief that an accused can never escape during his transfer to the police station or that a detainee can never escape from a prison. Also unrealistic is the assumption that evidence dropped or left behind by an accused could “easily” be linked circumstantially back to the accused.
8 My colleagues refer to the English legislation, the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, as authority for the requirement that searches be conducted in police stations. Although foreign legislation can be useful as a source of criteria to determine the reasonableness of a search, I think it is clearly excessive to adopt foreign legislation to reinvent the common law rule in Canada. This is particularly inopportune given that the foreign legislation referred to by my colleagues was specifically adopted to supersede the common law. In my view, the proposed rule that all strip searches proceed at a police station absent exigent circumstances should be left to Parliament.
9 Furthermore, by stating that exigent circumstances will only exist where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten safety, my colleagues have in fact abolished the right to search for evidence upon arrest. In doing so, they have drawn an unprecedented and unworkable distinction between the objective of discovering and preserving evidence and the objective of searching for weapons; objectives which they recognized in their reasons as the “twin rationales for the common law power of search incident to arrest” (para. 95). There is no demonstrated need for such a radical change to the common law power. My colleagues come to the conclusion that the trial judge erred in determining that the search was reasonable in all of the circumstances principally on the basis that there were no exigent circumstances to justify a search outside the police station. I disagree with their conclusion on the basis that the police are under no obligation to defer the search.
10 With regard to the manner in which the search was conducted, I would agree with the Crown that the three searches must be looked at individually and justified according to the circumstances applicable to each of them. In my view, the first search was perfectly justified. As provided for in Cloutier, supra, the reasonable and probable grounds for the arrest provided the authority to search for evidence related to the crime. The arresting officers had reasonable cause to believe the accused was hiding evidence. Information that the accused had been observed passing a white powdery substance to other persons and receiving cash in return was passed onto the arresting officers by the surveillance team, giving rise to a suspicion that the accused would have crack cocaine on his person. In addition, as the arresting officer approached the accused, he observed the accused crushing something between his fingers that left a white residue. During the course of the arrest, the police found what looked to be cocaine under the table where one of the suspects was arrested.
11 The manner in which the first search was conducted was not abusive. The search was minimally intrusive on the accused’s privacy. It was conducted in a private place and by one officer of the same gender as the accused. The officer did not remove the accused’s clothing but only pulled back his underwear in order to visually inspect his buttocks. The officer used minimal force until the accused hip-checked and scratched him, at which point the officer responded with force only to regain control of the situation.
12 With regard to the second search, I would dispute in particular the obligation that my colleagues put on the arresting officer to obtain the authorization of a senior officer at para. 113. I find no authority for such a requirement and see no value in submitting the evaluation of the situation to a person who is not present nor independent of the police. Furthermore, similar to the obligation that police conduct searches only at the station, the imposition of this requirement negates the purpose of the common law power by imposing an additional barrier to the ability of the police to immediately seize evidence or weapons. The case law has always recognized that the search power is applicable to the arresting officer, the very person who is in the position to act with the immediacy justified by the exception. Given the problems inherent in the requirement for prior authorization, the preferred approach to protecting the rights of the accused is to hold police to a higher degree of justification when a highly intrusive search has been conducted; see S. A. Cohen, “Search Incident to Arrest” (1989-90), 32 Crim. L.Q. 366.
13 In finding the manner of the search unreasonable, my colleagues emphasized not only the “unilateral” decision of the officers, but also the danger to the health and safety of the accused and the failure of the police to give the accused the opportunity to remove his own clothing. In my view, too much was made of the issue of the appellant’s health and safety, which is but one factor to be considered in the context of the reasonableness analysis. While it may have been preferable to conduct the search in more sanitary conditions, the appellant adduced no evidence of any health risk or health effect resulting from the use of the gloves. In circumstances such as this, I believe that regard must be had to the need for a police officer at the time of arrest to make instantaneous decisions without having the luxury of reflection; see United States v. Robinson, 414 U.S. 218 (1973).
14 I also disagree with my colleagues’ insistence that police must always give the accused an opportunity to remove his own clothing. In this case, the officer might have given the accused the opportunity to undo his pants during the search in the stairwell, but his failure to make such a request by no means rendered the search unreasonable. With respect to the second search in the restaurant, regard must be had to the fact that the accused struggled with the officers such that they required another officer to assist them. In circumstances where the accused resists arrest or acts violently toward police, it seems unlikely that the accused will comply with a request to remove his or her own clothing. I strongly disagree with an approach which would turn this factor or any of the other factors into hard and fast requirements that must be met each and every time a strip search is conducted, without regard to the particular circumstances of the case.
15 On the other hand, my colleagues give practically no importance to the lack of cooperation and resistance of the accused, stating at para. 116 that there is “no requirement [to] cooperate with the violation [of one’s rights]”. I disagree with my colleagues that resistance to a lawful arrest is justified as a refusal to cooperate with a violation of s. 8 . In my opinion, resistance to arrest can be met with the minimal force necessary. It is also an important consideration in determining the breach of the accused’s privacy interests. All persons must be treated with dignity and respect, but the expectation of privacy of the accused in the circumstances of this case must be measured in light of his conduct.
16 Despite my disagreement with the emphasis my colleagues have placed on certain aspects of the second search, I agree that the second search did violate the accused’s s. 8 rights. In this case, the police had actual knowledge that the accused was in possession of what was thought to be narcotics, providing a greater opportunity to ensure that the evidence would not be lost before reaching the station. In addition, the accused’s refusal to give up the evidence meant that it could be seized at the scene only if the police conducted the strip search in less than private conditions and applied a degree of force which may not have been necessary had the search been conducted at the station. Given these circumstances, the police should have concluded that close custody and immediate transfer to the station were the appropriate means of pursuing the ends of justice.
17 Having found a breach of s. 8 , it is necessary to conduct a s. 24(2) analysis to determine whether the evidence obtained contrary to s. 8 should have been excluded at trial. As my colleagues point out, this is a theoretical exercise in this case since the appellant has already served his sentence. I will not proceed to a detailed analysis, in these circumstances, but find that the administration of justice would not be brought into disrepute by admitting the object of the search.
18 In deciding this issue, the Court must consider whether the admission of evidence would render the appellant’s trial unfair, whether the violation was serious and whether the exclusion would have a more serious impact on the repute of the administration of justice than admitting it; see R. v. Collins, [1987] 1 S.C.R. 265. In this case, the appellant concedes that the admission of the evidence would not jeopardize the fairness of the trial. The evidence of the narcotics was not conscriptive of the accused and was otherwise discoverable.
19 Regarding the seriousness of the violation, this Court has considered the obtrusiveness of the search, the individual’s expectation of privacy in the area searched, the existence of reasonable and probable grounds and the good faith of the police; see R. v. Caslake, [1998] 1 S.C.R. 51, at para. 34. The search was quite intrusive due to the exposure of the accused’s buttocks and genitalia and the attempt by police to retrieve the evidence. In addition, the accused had a reasonably high expectation of privacy with respect to the physical area of his body that was searched. The actions of the accused nonetheless led to a diminished expectation of privacy. Had the accused cooperated with police during the first search and permitted them to retrieve the evidence, the second more intrusive search would not have been necessary. In addition, the circumstances of the arrest provided the police with reasonable grounds to believe that the evidence would be found on the accused, a conclusion supported by the factual findings of the trial judge. Finally, there is no evidence to suggest that the officers acted out of bad faith or that they were plainly aware that they were violating the accused’s s. 8 rights.
20 The question of whether the exclusion of the evidence would have a more serious impact on the repute of the administration of justice than its admission must be answered in the affirmative. Drug trafficking is recognized as a serious crime. Although we do not have the benefit of conclusion of the trial judge on this issue, it is reasonable to assume that the use of this evidence at trial played an important role in linking the accused to the commission of the crime.
21 For the above reasons, I would dismiss the appeal.
The following are the reasons delivered by
22 L’Heureux-Dubé J. (dissenting) -- I concur with Bastarache J., except I wish to reiterate the view I expressed in R. v. Stillman, [1997] 1 S.C.R. 607, at para. 167, that one factor in assessing the reasonableness of a relatively intrusive search, such as the strip search carried out in this case, is the existence of reasonable and probable grounds to justify the search. In my view, that factor was established in this case; nonetheless, I agree the second search violated s. 8 of the Canadian Charter of Rights and Freedoms for the reasons articulated by Bastarache J.
The judgment of Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
IACOBUCCI AND ARBOUR JJ. –
I. Introduction
23 The constitutional right to privacy requires that unjustified searches by the state be prevented. Accordingly, our Court has held that prior authorization, where feasible, is a precondition for a valid search and seizure (Hunter v. Southam Inc., [1984] 2 S.C.R. 145). At the same time, the power to search “incident to arrest” has developed as a long-standing exception to this customary rule. As a concept that has evolved at common law, the search incident to arrest power has been framed by nebulous parameters.
24 This Court has, however, taken important steps toward defining the nature and scope of this power within Canadian law. As a result, it has been established that this search power may include the authority to fingerprint or conduct a “frisk” search of an arrested individual (see respectively R. v. Beare, [1988] 2 S.C.R. 387, and Cloutier v. Langlois, [1990] 1 S.C.R. 158). It may also authorize the search of a motor vehicle driven by an arrested person (R. v. Caslake, [1998] 1 S.C.