Monday 25 July 2016

The police search of the woman was not abusive (part 1)

Elizabeth Robb was charged with having care and control of a motor vehicle while the concentration of alcohol in her body exceeded 80 mg in 100 mL of blood on May 18th, 2012.  At 1:37 am Constable Eric Namers saw a car driven by the defendant leave a parking lot located close to several downtown bars. He was on general patrol in downtown Whitby in the province of Ontario.  He followed the car and saw that the validation sticker had expired. He stopped the car and spoke to the driver. There was an odor of alcohol on her breath and she admitted consumption of alcoholic beverages. PC Namers demanded that the defendant provide a sample of her breath into an approved screening device. The machine registered an “F” for fail and she was arrested for the offence listed above.

She provided two samples into an approved instrument at 17 Division. Her readings, taken in a manner appropriate to the relevant sections of the criminal code, were 132 mg of alcohol in 100 mL of blood and 143 mg of alcohol in 100 mL of blood. These readings were truncated to readings of 130mgs of alcohol in 100ml of blood and 140 mg of alcohol in 100ml of blood in the certificate as evidence of her blood alcohol concentration at the time of care and control. It is common ground that Ms. Robb was polite and cooperative throughout her contact with the police in this matter.

When the matter went to court, her lawyer raised two important Charter rights abuses committed against his client by the police.

1.     Were Ms. Robb’s rights under sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms violated when she used the toilet in a cell monitored by video?

2.     Were Ms. Robb’s rights under sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms violated by the requirement that she remove her underwire bra for inspection by the police?

Her lawyer submitted in her behalf that a stay of proceedings was warranted pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

In the alternative, her lawyer asked the court to exclude from evidence the breath readings at the core of the crown’s case. There was no issue that, absent a stay of proceedings or the exclusion of evidence of the breath readings, Ms. Robb was guilty of the offence before the court.

Ms. Robb was lodged in cell number 11 before and after her first breath test. Every cell at 17 Division is video-monitored by the officer in charge of the station as well as other officers responsible for the safety and supervision of prisoners.

Ms. Robb noticed the video camera in front of the door of the cell and expressed concern that she might be observed while using the toilet. Special Constable Menzie assured her that “we can tell you’re sitting on the toilet, but we can’t see you per se “. This advice was accurate

A video recording of Ms. Robb’s stay in cell 11 was introduced at trial. The recording depicted the view available to the officers monitoring the cell. The resolution was very poor. The illumination was also very poor. The top and bottom parts of the cell door are separated by what appears to be a 6 inch wide horizontal metal plate. The metal plate completely masks the image on the video of the toilet at and immediately above the level of the toilet seat. It is possible to tell that Ms. Robb was  using the toilet on two occasions. She walks from the bench to the toilet, manipulates her clothing and sits down. No undergarments are ever visible. No skin below her neckline was visible. None of her private parts were visible. The viewer would be simply aware that Ms. Robb was using the toilet. In the circumstances of this case the video surveillance of Ms. Robb while she used the toilet in cell 11 did not constitute a breach of her Charter rights.

Prior to escorting the defendant to the cell, Special Constable Menzie conducted a pat down search of her in a small room that has no window or video surveillance. The door was closed. The search disclosed that Ms. Robb wore an underwire bra. On Menzie’s instruction, Ms. Robb removed her bra from under her shirt and handed it to her. I find that Ms. Menzie did not touch or see Ms. Robb’s breasts during their contact.

An underwired bra) is a brassiere that utilizes a thin, semi-circular strip of rigid material fitted inside the brassiere fabric. The wire may be made of metal, plastic, or resin. It is sewn into the bra fabric and under each cup, from the center gore to under the wearer's armpit. The wire helps to lift, separate, shape, and support a woman's breasts. 

She told the court that she was “extremely uncomfortable” when Ms. Menzie searched her upper body and required her to surrender her bra.

During a portion of the booking-area video recorded shortly before her release, Ms. Robb offered to put her bra on in front of several male officers in the parade area instead of the privacy of the search room.

By way of explanation, she testified that by this time that she felt embarrassed, humiliated and at the end of her rope.  She told the court that she was anxious to get her bra back on as fast as possible. Further, n the video recording she appeared unconcerned, relaxed and nonchalant.
The police personnel who dealt with Ms. Robb that morning were entirely appropriate and professional. But that does not end the inquiry. The evidence indicated that the removal of Ms. Robb’s bra was police policy at that time. The reason for the policy was that underwire bras, such as that worn by Ms. Robb, had wire in it that can be used as a ligature, as a weapon and as an escape tool if removed from the bra. However, Ms. Menzie tactile examination of the edges of the bra, while it was worn by Ms. Robb, showed that it was intact. The internal wire cannot be quickly or readily removed from an intact bra.

The judge said;

“Ms. Robb’s behavior was entirely appropriate. There were no indications that she was a danger to herself or police personnel. There was no evidence that she was an escape risk. Obviously, the removal of her bra in this particular situation had no relation to the search for evidence. The policy that required the removal of underwire bras from all detainees was unreasonable. It has since been changed by the Durham Regional Police Service. Officers are now required to use consider if the detainee is potentially suicidal or assaultive before requiring that these undergarments be removed for inspection.” unquote

The removal and inspection of Ms. Robb’s bra was a violation of her Charter section 8 right to be free from unreasonable search and seizure.

The judge said; I have concluded that this breach does not meet the test for a stay of proceedings reiterated by the Supreme Court of Canada.” 

But the matter didn’t end there.

1.         Was the impugned behaviour is so offensive to society’s sense of fair play and decency that to allow even a fair trial to continue risks tainting the justice system with the misconduct? Ordinarily society will not be offended unless the misconduct is apt to continue in future situations.

2.        How will the court address the prejudice to the integrity of the justice system? Will an alternate remedy short of a stay of proceedings disassociate the system from the impugned state conduct going forward?

3.        The trial court must balance the competing interests. Will the integrity of the justice system be best protected by a stay or by the continuation of the trial? This component has added significance for the determination of cases under the residual category. In determining the issue the court must consider: the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges and the interests of society in having the charges disposed of on the merits.

The Supreme Court, at paragraph 41 in Babos, put the balancing process in the following context:

“Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.” unquote

The judge in Ms. Robb’s case said;

“In the case before me the violation fell well short of egregious. Ms. Rob was treated with courtesy throughout her detention. There was no brutality, humiliating treatment or dishonest violation of the trial process by the police. The police error had no trace of cynical or wilfully wrong behaviour. The misconduct has since been addressed by a change of policy. A remedy can be devised to disassociate the administration of justice from the breach short of terminating the prosecution. Finally, there is a strong public interest in determining the merits of drinking and driving cases. The integrity of the system can best be preserved by acknowledging the wrong and adjusting the penalty to reflect it.” unquote

I presume that the judge was referring to impaired driving.

The judge then said;

“I do not accept that the exclusion of the evidence of the breath tests is appropriate. While the breach is serious, it occurred before the binding appellate authority in Lee, supra, characterized the impugned police action as a strip search. The police conduct was wooden and arbitrary, not offensive or degrading. The effect on Ms. Robb’s Charter protected interests was not grave. No evidence was produced or sought through the breach. Once again, there is a strong public interest in the adjudication of drinking and driving cases on their merits. There will be a finding of guilt. I will now address Ms. Robb’s remedy by way of sentence adjustment.” unquote

Now in the next article, I am going to give you a similar case in which the result was different. 

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