I have been writing recently about a series of rulings from the Ontario Court of Appeal that overturned motion judges and entered acquittals based on violations of the right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights. If the court keeps this up I will have to abandon the idea of writing about why the Grant test fails.

In my post titled Lifeline To The Outside World dated July 10, 2016, I described the opinions in R v Harflett, 2016 ONCA 248, R v McGuffie, 2016 ONCA 365 and R v Pino, 2016 ONCA 389 as a new trilogy of cases in which real evidence consisting of a variety of drugs was excluded. We can now add the recent decision in R v Poirier, 2016 ONCA 582 where Justice Karen Weiler, writing for a unanimous court, at paras. 91-2, found that the trial judge failed to recognize the cumulative effect of multiple Charter breaches and rewarded police disregard of constitutional standards. Women are the majority of judges on these cases although Justice Gladys Pardu sat on both Harflett and Pino. It has been the summer of…well, girls to the rescue!

On December 5, 2012, Jeffrey Poirier was arrested in Sarnia, Ontario. Poirier was an addict and a small time drug dealer who was caught in the cross-hairs of law enforcement for some time. The police had obtained a general warrant under s. 487.01 of the Criminal Code based on informant information that he concealed drugs in his rectum until he made a sale. The warrant authorized his detention until he had enough bowel movements to satisfy the police that all the packages containing drugs were excreted. He was given his right to counsel and spoke with a lawyer.

The police took Poirier to a lock-up where the warrant was read to him. He was strip searched and put in a dry cell with no running water or functioning toilet. Unless he defecated in the cell, he would have to be taken to a toilet where he would be monitored. He was detained for 43 hours before being brought before a justice of the peace. He was handcuffed to the bars of his cell above his head, so he could only reach as low as his chest, and forced to wear oven mitts that were duct taped together. In what is known as a bedpan vigil search – the police waited – while Poirier went into severe withdrawal symptoms with no medication to alleviate the pain. During the first 30 hours, he eliminated four packages of heroin, cocaine and methamphetamine. The handcuffs and oven mitts were then removed. The police took him before a justice the next morning.

Poirier moved for exclusion of the drugs based on the unlawfulness of the general warrant and breaches of ss. 7, 8 and 9 of the Charter – that his security of the person had been violated, the manner of the search was unreasonable and the detention was arbitrary. But Justice John Desotti of the Ontario Superior Court of Justice thought everything was just dandy, dismissed the motion, convicted Poirier of possession for the purpose of trafficking and sentenced him to 10 years imprisonment.

Justice Weiler, with Justice Janet Simmons and Justice Gloria Epstein concurring in the result, summarized the conclusions of the court this way, at paras. 11-2:

“A bedpan vigil search is a search. It is a type of search that can be authorized pursuant to a general warrant under s. 487.01 of the Criminal Code, but, in this case, the warrant was invalid because its language purported to authorize detaining the appellant indefinitely without bringing him before a justice of the peace, thereby violating s. 503 of the Criminal Code. The provisions of s. 503 of the Criminal Code are mandatory and cannot be overridden by the terms of a general warrant.

The Crown’s submission that the search was nevertheless valid as a common law search incident to arrest must also be rejected. Quite apart from the effect of a breach of s. 503 on the appellant’s Charter rights, a search incident to arrest must be executed in a reasonable manner and this was not done. The manner in which the search was carried out was not proportionate to the crime alleged and the circumstances. It did not have regard for the appellant’s personal dignity as much as possible, or for medical concerns specific to the appellant. Accordingly, the trial judge erred in holding that there was no violation of the appellant’s rights under the Charter.”

Justice Weiler then went on to analyze the circumstances and the law that I will condense with respect to two issues: (1) the policy underpinning s. 503 of the Code and (2) the unreasonable manner of the search.

1. Code s. 503

Justice Weiler held, at paras. 57-9, that s. 503 of the Code, “reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law.” The section required the police to take Poirier before a justice without unreasonable delay and, in any event, within 24 hours. The section is mandatory and not simply a matter of form. As Judge D.A. Hogarth said in R v Truchanek (1984), 39 CR (3d) 137 (BC Co Ct), at pp. 170-1, tolerating a failure to take a defendant before a justice is of “vital importance” because it “opens up to the police the idea that any one of us who has the misfortune to be arrested could be held for any length of time…for any purpose at their whim.”

“Nor does it matter,” Justice Weiler wrote at para. 58, “that the appellant may not likely have been released by a justice of the peace while the bedpan vigil search was being conducted. If the police had complied with s. 503, the manner in which the appellant continued to be detained would have been subject to court supervision. The appellant’s detention would have changed from being a detention pursuant to the execution of the general warrant to a court monitored detention that ensured the ongoing protection of the appellant’s Charter rights.”

The Crown argued that there was only a violation of s. 503 after Poirier had been detained for 24 hours and, consequently, there was no breach of s. 8 of the Charter in obtaining the drugs that he expelled before the 24 hours elapsed. That argument was rejected by Justice Weiler, at paras. 61-2: “First, section 503 requires that the appellant be brought before a justice of the peace ‘without unreasonable delay’, not just within 24 hours. Instead, 24 hours represents the outer limit…Second, the submission creates an artificial divide in what was one course of conduct. In R v Pino, 2016 ONCA 389…Laskin J.A. held, at para. 48, that evidence obtained prior to a Charter infringement may still be considered to have been ‘obtained in a manner’ that violated the Charter…Even if the Crown were correct that the appellant’s rights were only breached after 24 hours, there is no doubt on the facts of this case that the evidence obtained and the Charter breach would be both temporally and contextually linked.”

2. Manner of Search

Justice Weiler began her treatment of the manner of the search with the comments of Justice D.H. Doherty in R v McGuffie, 2016 ONCA 365 where he emphasized, at para. 49, that s. 8 of the Charter “rests on the fundamental belief that privacy…is an essential precondition to individual liberty and security of the person.” If you thought the facts were egregious, they get worse in Justice Weiler’s conclusions, at paras. 73-6. The strip search was not conducted in private and Poirier was “completely naked” for some portion of it as well as video recorded. He was handcuffed to the bars of his cell during the bedpan vigil search with three sets of handcuffs for the first 22 hours. He was unable to move other than sit or lie on a steel bed. Justice Weiler said this about the handcuffs, at para. 75: “At the very least, the chaining of the appellant to the bars of his cell does not meet the requirement that the use of physical constraint be proportionate to the objective, or strike an appropriate balance between the need for effective law enforcement and the appellant’s interests in privacy and dignity.”

The trial judge and the police were then dismantled where Justice Weiler returned to the discussion of dignity, at paras. 87 and 93: “[T]he trial judge did not consider whether the physical restraint of the appellant was proportionate and whether it interfered with his privacy and dignity as little as possible. Nor did the trial judge consider the serious deficiency in police efforts to understand and plan for the medical risks to the appellant. While I accept that the police conduct in this case is somewhat mitigated by their efforts to seek judicial authorization, it does not excuse the overall conduct of the police in this case. The failure to bring the appellant before a justice of the peace without delay is only one part of the picture. As discussed, that breach was compounded by a demonstrated disregard for the appellant’s privacy, dignity, health and safety. In these circumstances, I do not accept that the officers were acting in good faith.”

3. Conclusion

I will leave you with this. Human dignity resides in the heart of the Charter of Rights. Justice Weiler referred to dignity four times in the opinion. It is the core constitutional value at stake here. That Justice Desotti, the trial judge, minimized and thus devalued the defendant’s dignity to pave the way for a 10 year sentence was derogatory judicial reasoning. I am reminded of something that I heard Robert A. Philp, Q.C., counsel to the Alberta Human Rights Commission, say one day when he was a judge of the Provincial Court of Alberta. It is something Edmonton criminal lawyers have heard him say many times: “Remember. Everyone. Everyone is entitled to be treated with dignity.”