IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is my ruling on a voir dire to determine the admissibility of certain evidence challenged by the accused.

[2]           Madison Fine is charged with possession of heroin for the purpose of trafficking, and possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[3]           She alleges her rights under sections 8, 9 and 10 under the Charter have been breached.

[4]           On February 27, 2014 the Kelowna RCMP downtown enforcement unit was engaged in an undercover operation on Leon Avenue in Kelowna. The downtown enforcement unit (Constables Craven, LaRue, Celli and Wenger on this day)  were tasked with enforcing federal and provincial statutes, as well as municipal bylaws in the downtown core of Kelowna, specifically in an area commonly known as the “red zone”, where a high volume of street level drug trafficking occurs on daily basis. The constables, as members of that team, are familiar with the street level traffickers and their customers, and the behaviour of street level traffickers while they sell their drugs.

[5]            The 400 block Leon Avenue is in the heart of the “red zone”.

[6]           On February 27, the downtown enforcement unit decided to target “re-loaders”.  These individuals supply the street level dealers with drugs, who in turn sell to their customers.

[7]           Constable Craven was in plain clothes and stationed at an observation post.  Constable Craven has observed hundreds of hand to hand streel level drug transactions and sees them every day he works.  On this particular day, he had binoculars, and an unobstructed view of the 400 block of Leon Avenue.  Leon Avenue is a one way street, with diagonal parking stalls on either side of the street.

[8]            Constable Craven saw Jacob Wilson, whom he knew from numerous prior dealings and prior drug trafficking and drug possession investigations.  At 1 p.m. Constable Craven saw Wilson loitering outside the building located at 425 Leon.  He saw an individual on a bike approach Wilson, have a quick conversation and then saw Wilson hand over what appeared to be small rocks of crack cocaine.  Both men looked furtively about themselves, and the man on the bike handed Wilson some money and then departed.  At 1:34 p.m. Constable Craven watched a male in a car drive to Wilson’s location, park and get out. This person looked as if they were looking for someone. He made eye contact with Wilson and approached him.  The two men huddled together and had a brief conversation. Wilson produced what appeared to be rocks of crack cocaine and put them in the male’s hand.  The male handed Wilson some money and left. Wilson walked away in the opposite direction.  At 1:40 p.m. Wilson was stopped by another male on a bicycle who stopped and held out his hand. Wilson already had a white substance in his hand. The male gave Wilson money and Wilson gave the male the white substance.  The two were huddled together during this transaction.  The male left.  One minute later, another male approached Wilson. Wilson took a substance out of a brown bag and handed it to the male, and the male gave Wilson some money.  Both men departed in different directions. 

[9]           After seeing these four interactions Constable Craven concluded that Wilson was engaged in trafficking drugs.

[10]        Wilson next went into the Interior Health building on Leon Avenue.  He was inside for almost an hour.  While he was inside, Constable Craven watched a female named Trotsky sell what appeared to be drugs on Leon Avenue.

[11]        Wilson emerged at 2:45, and walked back to 425 Leon, the location where he conducted the earlier transactions.  He did not engage with interested buyers, although several attempted to make eye contact with him. Wilson waved these people off as they approached him, and those customers engaged with Trotsky.  In Constable Craven’s opinion, Wilson’s conduct was different after he emerged from Interior Health.  When he was selling what appeared to be drugs, he was very animated, paced back and forth and constantly looked about.  After he emerged from Interior Health, he stood in one spot, did not make eye contact with anyone and appeared to be waiting for someone.  He shrugged off people who approached him.  On three occasions he directed customers to Ms. Trotsky.  At 2:55 p.m. a white sedan pulled up to Wilson’s location.  A female got out of the car and engaged Wilson in a brief conversation.  Wilson produced a cell phone and made a phone call, and spoke on the phone.  After the phone call the female hung around Wilson and remained at 425 Leon.

[12]        I make the following finding of facts.

[13]        At 3:05 p.m. Constable Craven saw a Ford 150 pick-up truck stop directly in front of where Wilson was standing.  Constable Craven could see there were two occupants in the pickup, but he could not see what gender either individual was. Wilson and the female approached the driver’s side window and Wilson spoke to the driver. While he was speaking, Wilson looked about himself.  The female also appeared to be acting as a lookout. Wilson then produced a large sum of currency and quickly threw it through the half opened driver’s window. Constable Craven could see the bills separate and float down to both the driver and passenger area inside the truck. Very quickly after the money was thrown, a hand emerged from the window holding a clear plastic bag containing a white substance.  Constable Craven could not tell if it was the driver or the passenger’s hand. Wilson took the bag and returned to the sidewalk.  The entire exchange lasted no more than 90 seconds.

[14]        Upon seeing this, Constable Craven came to the conclusion that the occupants of the pick-up truck were “re-loading” Wilson - they were providing him with more drugs so he could continue with his street drug sales.  Constable Craven saw the pick-up truck back up and travel eastbound on Leon Avenue.

[15]        Constable Craven was in radio contact with other members of the team.  He had informed them earlier of the observations he made of Wilson’s trafficking activities, and his activities after he left Interior Health.  Once Constable Craven saw the above described activities at the pick-up truck, he informed Constables Wenger and Celli of what he saw. As the pickup backed out of the parking stall, Constable Craven broadcast the make, model and licence plate number of the pick-up truck to Constables Celli and Wenger, who were in an unmarked police car a short distance from the 400 block of Leon.  Constable Craven instructed Constables Celli and Wenger to arrest the occupants of the pickup for drug trafficking. Constable Celli was also of the opinion that the occupants of the pick-up truck had engaged in drug trafficking after he heard the broadcasts from Constable Craven.  Constables Celli and Wenger followed the pick-up truck down Leon and then onto Highway 97.  Constable Craven followed as well, in a separate car.  Constables Celli and Wenger were directly behind the pick-up truck as it travelled over the bridge. The truck was stopped at 3:15 p.m. as it was about to leave the bridge.

[16]        Constable Celli approached the passenger side of the truck, identified himself as a police officer and asked Madison Fine to get out of truck. She was holding two cell phones.  He arrested her for possession of a controlled substance.  Constable Celli acknowledged this was a mistake.  He testified that during the rush of the arrest he made an error. Constable Craven arrived on the scene at 3:20 p.m. and rearrested Ms. Fine for possession for the purpose of trafficking, and read her section 10 Charter rights. She indicated she wished to speak to counsel.

[17]        A request was made for a female police officer to attend the scene and transport Ms. Fine to the detachment.  Constable McLean arrived in at 3:30 p.m. in response to this request. She did a cursory search of Ms. Fine, and then handcuffed  her hands behind her back, and placed her in the back of Constable McLean’s police car.  Constable Celli watched as Ms. Fine attempted to manoeuvre her hands to her side. Constable Celli knew that suspects often hid drugs down their pants.  He told Ms. Fine not to reach for any drugs and warned her about destroying any evidence.

[18]        Constable McLean also noticed Ms. Fine was fidgeting after she was placed in the back seat of the police car.  Ms. Fine asked that her handcuffs be placed in front rather than behind her body.  Constable McLean did not make this change for safety reasons, but she did adjust Ms. Fine’s sweater for her, to cool her down.

[19]        Constable Craven seized Ms. Fine’s purse.  Inside the purse was a wallet with $915. The assortment of bills was consistent with drug trafficking in Constable Craven’s opinion. Also in the purse was an open bag of baking soda, which is commonly used  as a cutting agent in processing cocaine.  The cell phones which Ms. Fine had in her hands when arrested rang frequently.

[20]        Constable Craven’s evidence was that Constable Wenger advised him at the scene that he had past experience with Ms. Fine and that in the past she had hidden drugs in her vagina.  This does not accord with Constable Wenger’s evidence, and I am unable to conclude beyond a reasonable doubt that this conversation occurred at the scene. Constable Craven also testified that he instructed Constable McLean that Ms. Fine needed to be strip searched once at the detachment.  Constable McLean could not recall receiving that information at the scene.  Again, I am unable to conclude beyond a reasonable doubt that Constable Craven gave these instructions at the arrest scene.

[21]        Constable McLean left the arrest scene at 3:41 p.m. and arrived at the detachment five minutes later at 3:46 p.m.  She escorted Ms. Fine into the booking room to be processed. During the booking in process, Corporal Williams, who was in charge of the Special Enforcement Team, advised Constables Celli  and Wenger that he had prior dealings with Ms. Fine, and during a past arrest, she had hidden drugs in her private area. He told them that Ms. Fine was later found in a cell after her arrest with the drugs. 

[22]        Corporal Williams was not this team’s direct supervisor.  That person was not on duty that day.  Constable Celli considered Corporal Williams his supervisor in the circumstances and asked if it was appropriate for a female officer to do a full body search of Ms. Fine. Corporal Williams confirmed that such a search was necessary.

[23]        Constable Celli informed Constable McLean of the information he received from Corporal Williams and told her to do a full body search of Ms. Fine.  Before Ms. Fine was searched, Constable Wenger told her that she was about to be searched, and to “save some dignity”, she should hand over any drugs she had.  Ms. Fine did not respond.

[24]        Constable McLean took Ms. Fine into a secondary search room at 4:00 p.m.  She was accompanied by a female commissionaire, a civilian employee of the R.C.M.P.  This secondary search room is a private room in the cellblock area of the detachment. 

[25]        In the cellblock area there are a number of live video cameras.  This secondary search room contains a video camera which records and broadcasts what happens in the room.  The camera feeds video into a room in the cellblock area where between fifteen and twenty video cameras are monitored in a central location.  The room is not locked or secure. That video monitoring room is accessible to members of the RCMP who happen to be in the cellblock area, and to the civilian commissionaires. The video monitoring room is a location where the commissionaires have a computer and go to sit if there is nothing going on in the cells which needs their attention.

[26]        There was no evidence lead as to whether, on this particular day, RCMP officers of either gender, or commissionaires of either gender, were in the monitoring room.

[27]        According to Constable McLean, the purpose of the video cameras in this area is to capture any incidents that occur between police and prisoners.  Officers are able to access video recordings as evidence if an incident occurs. Officers must seek permission in writing in order to download video recordings for this purpose.

[28]        Here, the video tape was not entered as evidence. There was no evidence of what images the video recording captured.

[29]        Constable McLean had done two full body searches before this one. She assisted another female officer on one search, and on a second, she was assisted by a female commissionaire. She had not read the R.C.M.P. policy manual on strip searches before this arrest of Ms. Fine.  Constable McLean was of the opinion that officers have not been well trained on strip searches.  After this event, she read the case of R. v. Golden and the policy manual. 

[30]        Constable McLean was aware of the video camera and did not take any steps to turn it off.  It appears she did not inform Ms. Fine of the presence of the video camera.

[31]        Constable McLean testified that no female prisoners are allowed to keep their bras on while in cells, for safety reasons. She could not recall if Ms. Fine had a bra on. Constable McLean asked Ms. Fine to remove her shirt.  She checked the shirt and found nothing.  The shirt was returned to Ms. Fine and she put it back on.  Ms. Fine was then requested to remove her trousers.  A piece of tin foil fell out of Ms. Fine’s trousers. That was placed on a counter.  Ms. Fine was then asked to remove her underwear.  She was told to separate her feet and bend down. Constable McLean was standing two to three feet behind Ms. Fine and immediately noticed a bag between Ms. Fine’s legs.  This was at 4:06 p.m.  She asked Ms. Fine to remove it and hand it to her.  Constable McLean asked Ms. Fine to squat one more time to ensure she wasn’t hiding any more drugs.  Ms. Fine was then told to put her clothes back on.

[32]        Constable McLean used a calm measured voice while she dealt with Ms. Fine.  At no time did she touch Ms. Fine.  The commissionaire’s role was to complete a prisoner sheet as Ms. Fine removed her clothing and, as Constable McLean testified, to “protect” the officer and act as a witness of the officer’s actions during the search.

[33]        Ms. Fine was cooperative throughout the search.

[34]        Constable McLean made some handwritten notes and from the handwritten notes she typed up her report.  She agreed that her notes do not contain all of the details of the body search.

[35]        Ms. Fine was placed in telephone room to speak with counsel immediately after the search, at 4:09 p.m. At 4:14 a call was placed to Ms. Fine’s lawyer and she spoke to someone in the privacy of the telephone room.

[36]        The bag Ms. Fine handed to Constable McLean contained 48 individually packaged bags of cocaine, crack cocaine and heroin.  Each bag had a small tag on it, with the words ‘‘Carly” and the phone number “250-859-9073”.  In total, the bag contained 24 grams of crack cocaine, 3.8 grams of cocaine and 23 grams of heroin. The tin foil also contained drugs.

[37]        Ms. Fine did not testify in the voir dire.

[38]        Defence counsel argued that the police did not have reasonable and probable grounds to arrest Ms. Fine and cited the following cases:  R. v. Lahtinen, BCPC, May 30, 2011, unreported decision Coquitlam Registry No. 81306, St. Pierre P.C.J.; R. v. Brown, [2014] B.C.J. No. 2248; and R. v. Oldfield, [2006] O.J. No. 314.  Crown relied on the following cases: R. v. Montgomery, 2009 BCCA 41; R. v. Ashby, 2013 BCCA 334; and R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[39]         Under section 495 (1) of the Criminal Code a peace officer may arrest without warrant a person who has committed an indictable offence, or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.

[40]        The authorities cited by counsel set forth the law.   A police officer must have both a subjective and objective basis to arrest a suspect. The arresting officer must believe that he has reasonable and probable grounds to arrest. It must also be shown that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed to make the arrest.

[41]        The standard to be applied in assessing whether or not there were reasonable and probable grounds is not proof beyond a reasonable doubt or even a prima facie case.  It is one of reasonable probability.  Whether or not a reasonable probability exists is to be determined based on the totality of the circumstances.

[42]        While the cases cited by counsel are illustrative, each case ultimately rests on its own unique set of circumstances.

[43]        Constable Craven had been investigating street level drug dealing in the downtown core of Kelowna for two years. He was familiar with the street level dealers and the activities that make up the drug trade in Kelowna.  Constable Celli was an experienced member of the team, as was Constable Wenger.  On the day in question, Constable Craven was at an observation post on Leon Avenue, an area where drug transactions commonly occur.  He saw Wilson, a known drug dealer, sell what appeared to be drugs on a number of occasions, and then conduct himself in a manner consistent with someone who had run out of drugs to sell.  Constable Craven saw Wilson telephone someone, and shortly after saw a pick-up truck arrive at his location.   Throughout his observations he was in contact with Constables Celli and Wenger.  He advised them of the arrival of the pick-up truck. Constable Craven could see there were two individuals in the pick-up truck.  He could see movement inside the pick-up truck from both the passenger and driver side of the truck cab.  He saw Wilson throw a large sum of money into to the cab of the pickup and saw the bills separate and float down to both the driver’s side and the passenger side.  He then saw a hand come from inside the pick-up truck with a clear baggie of what appeared to be cocaine. He could not tell if it was the passenger or the driver’s hand. He did not know if the truck had bucket seats or a bench seat. Wilson took the bag and the pick-up truck left.  Constable Craven alerted Constables Wenger and Celli of what he had seen and the licence plate number of the truck.  They pulled in behind it and followed it until they stopped it a few minutes later. When Constable Celli approached the passenger side of the truck, he saw Ms. Fine sitting with two cell phones in her hands.

[44]        Defence counsel has acknowledged that Constable Celli’s error in initially arresting Ms. Fine for possession of drugs is inconsequential, given Constable Craven’s re-arrest a few moments later for possession for the purpose of trafficking.

[45]        I conclude that Constable Craven subjectively believed he had reasonable and probable grounds to arrest both individuals in the pick-up truck for jointly possessing drugs for the purpose of trafficking.  I also conclude that Constable Celli, based on the information he received from Constable Craven, with the addition of the observation he  made of Ms. Fine with two cell phones in her hand, also subjectively believed he had reasonable and probable grounds to arrest her.

[46]        Would a reasonable person say that there was a reasonable probability, something surpassing mere suspicion, that a person in the passenger seat of the pick-up truck was involved in the “re-loading” of Wilson’s drug supply?

[47]        In my opinion, objectively viewed, reasonable grounds did exist.  The truck arrived shortly after a telephone call was made by Wilson. Ms. Fine had two cell phones in her hand when the truck was stopped.  The money Wilson tossed into the truck landed on both the passenger side and driver side of the truck. It was obviously visible to both occupants.   Constable Craven saw movement in the cab of the truck.  A bag of what appeared to be cocaine was produced from inside the truck. This action would have been visible to both occupants of the truck.  

[48]        There were reasonable grounds to conclude that there was a reasonable probability that the accused was jointly engaged in trafficking drugs, given all of these circumstances. I conclude the arrest was lawful.  

[49]        Counsel argues that Ms. Fine’s section 10 rights were breached, first when Constable Wenger asked her to hand over any drugs she might have, and second, when her right to call counsel was delayed due to the strip search.

[50]        I have considered the decisions of R. v. Nelson, 2010 ABCA 349 and R. v. Ashby, 2013 BCCA 334.

[51]        Section 10(b) imposes at least two duties on the police in addition to the duty to inform an accused of their rights. The first is that the police must give the accused a reasonable opportunity to exercise their right to retain and instruct counsel without delay.  The police must also refrain from attempting to elicit evidence from the accused until she has had a reasonable opportunity to retain and instruct counsel.

[52]        Ms. Fine was arrested at 3:20 p.m.  At 3:30 p.m. a broadcast was made requesting a female officer to pat down Ms. Fine and transport her to the detachment. Constable McLean received that call and attended. She did a pat down of Ms. Fine and put her in the back of the police car at 3:41 p.m. They arrived at detachment at 3:46 p.m.  It took a few minutes to process Ms. Fine in the booking room. During that time Constable Wenger heard Corporal Williams make comments about Ms. Fine’s past conduct in cells in hiding drugs on her person.   A decision was made to have Ms. Fine strip searched.  Constable Wenger testified that if there is a concern that a prisoner is either concealing weapons or evidence, they are searched before being placed in the telephone room for safety reasons, and to preserve evidence. Constable Wenger testified that he asked Ms. Fine to hand over any drugs before the search in an effort to save Ms. Fine the indignity of a strip search.  Ms. Fine did not respond to him. She was put in the search room at 4 p.m. and at 4:06 p.m. the drugs were located.  Ms. Fine was placed in the phone room at 4:09.

[53]        The search delayed Ms. Fine’s placement in the phone room, where she exercised her right to counsel, by nine minutes.

[54]        I accept Constable Wenger’s evidence that when he made the comment to Ms. Fine about producing any hidden drugs; it was to save her the embarrassment of a strip search instead of seeking to discover or elicit evidence.  Given all of the circumstances of this case, I do not consider this comment to be a breach of Ms. Fine’s section 10 rights.  Further, given the information the police had about Ms. Fine’s past behaviour in cells, a nine minute delay of her right to retain and instruct counsel was reasonable. Any delay at the arrest scene was to allow a female officer to attend in order to transport Ms. Fine, and that delay was not excessive.  I find there was no breach of Ms. Fine’s right to instruct counsel without delay.

[55]        Counsel argues that Ms. Fine’s right to be secure from an unreasonable search has been breached.  He argues that the police did not follow the guidelines set down by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83 (CanLII), [2001] S.C.J. No. 81.

[56]        At paragraph 99 of Golden, Iacobucci and Arbour J.J., writing for the majority, made the following comments:

[57]        In paragraph 101 the Court provided a framework for the police to decide how to best conduct a strip search incidental to arrest, in compliance with the Charter:

[58]         The Court held that strip searches are prima facie unreasonable and where the reasonableness of strip search is challenged, it is the Crown that bears the onus of proving its legality.  The Crown must convince the court on a balance of probabilities that reasonable grounds existed and the strip search was conducted in a reasonable manner.

[59]        I have already found that the arrest of Ms. Fine was lawful.  I also find the Crown has established there were reasonable and probable grounds for the strip search.  The officers knew the circumstances of the “re-load”, and Ms. Fine was arrested shortly after. There were no drugs found in the truck, but there was a cutting agent found in Ms. Fine’s purse, along with a large amount of cash and two cell phones which rang frequently. When she was placed in the back seat of the police car, she squirmed and appeared uncomfortable.  Constable Celli was suspicious that she had hidden drugs down her pants and warned her not to dispose of any evidence.  On arrival at the police station, Corporal Williams recognized her as an individual who had hidden drugs in her private area during an arrest in the past.  In my opinion, these circumstances, combined, establish the necessary reasonable and probable grounds for a strip search.

[60]        I turn now to whether the strip search was conducted in a reasonable manner.

[61]        Given that Golden has been the law in Canada for fourteen years, it is alarming to learn that police officers in Kelowna, according to Constable McLean, have not been properly trained, and at least in this case, not required to read the policy manual on strip searches before embarking upon one.  However, I must examine Constable McLean’s actions in this case, regardless of whether or not she was familiar with the guidelines. 

[62]        The strip search occurred at the police station in a private room.  There were no health or safety concerns. Although Corporal Williams was not the direct supervisor of Constable Celli, I find he was acting in a supervisory capacity at the time.  I do not find it was improper for Constable McLean to rely on Corporal Williams’ direction, given to her through Constable Celli, in these circumstances.  Both Constable McLean and the commissionaire were the same gender as Ms. Fine.  I do not find the presence of a commissionaire, an employee of the RCMP, as opposed to a second female RCMP, to be a breach of the spirit of the guidelines.  The RCMP employs many civilians to work in jail cells and book in prisoners. This is a reasonable delegation of minor duties which RCMP officers cannot be engaged in for budgetary reasons.  The commissionaire’s role in this strip search was simply to take notes of the clothing Ms. Fine took off and record any evidence.  Apart from that, she took no part in the search.  Her presence was appropriate and necessary.

[63]        Constable McLean did not touch Ms. Fine.  The entire search took approximately 7 minutes, and during the search Ms. Fine was never completely undressed. She removed her own clothing, and removed the bag of drugs from between her legs when it was discovered.

[64]        Although Constable McLean’s notes were sparse, they are supplemented by the notes of the other officers involved, insofar as the reason for the strip search.

[65]        Apart from one requirement, I find that Constable McLean properly followed the guidelines set out in Golden. In my view, the RCMP practice in the Kelowna detachment of video recording and broadcasting strip searches to a central monitoring room breaches the requirement that the strip search is carried out in a private area such that no one other than the individuals engaged in the search can observe the search.  

[66]        I find that the video taping of strip searches and simultaneous broadcast to monitoring rooms at the Kelowna detachment is routine.  Constable Celli testified that he assumed the cameras were “always on” as there is no start and stop mechanism on them.

[67]        Video recording activities in police detention and cells has been the subject of frequent judicial comment.  A number of Ontario Court of Justice decisions addressed the situation where detainees were videotaped and monitored while using a toilet. R. v. King [2012] O.J. No. 2574 (ONCJ); R. v. Teixeira [2012] O.J. No. 6653 (ONCJ); R. v. Chasovskikh [2013] O.J. No. 16 (ONCJ); R. v. Smith 2014 ONCJ 133 (CanLII), [2014] O.J. No. 1370; R. v. Griffin [2014] O.J. No. 2029 (ONCJ); R. v. Abelo 2014 ONCJ 275 (CanLII), [2014] O.J. No. 2765 (ONCJ); R. v. Orenchuk 2014 ONCJ 650 (CanLII), [2014] O.J. No. 5864 (ONCJ); and R. v. Joseph [2014] O.J. 5091 (ONCJ).  The Ontario Superior Court considered this issue on appeal in the following two cases: R. v. Mok, 2014 ONSC 64 (leave to appeal filed) and R. v. Deveau [2014] O.J. No. 3034.

[68]        In all of the above noted cases but one the video tape in question was entered into evidence and the defendants testified as to their expectation of privacy.  As well, in the Ontario cases, evidence was lead regarding signs advising detainees of the presence of video cameras throughout the cell area. Here, Ms. Fine did not testify as to her subjective belief in privacy, the video tape was not entered into evidence, and there was no evidence as to whether or not Ms. Fine was warned her actions were being videotaped and monitored.

[69]        The decisions generally found that the practice of videotaping and monitoring a detainee using the toilet in holding cells is an unreasonable intrusion of a person’s right to privacy and breached the detainee’s section 8 rights.  In some cases, a judicial stay was entered, in some others evidence was excluded under section 24(2) of the Charter.

[70]        In R. v. Mok, supra, Boswell J. reviewed the law on personal privacy in Canada, and cited Mr. Justice Cory in R. v. Stillman (1997), 113 C.C.C. (3^rd) at paragraph 42:

[71]         As Boswell J. stated in Mok, the section 8 guarantee against unreasonable search and seizure protects only reasonable expectations of privacy.  He commented at paragraph 55:

[72]        As Boswell J. noted, establishing a subjective expectation of privacy is not a high hurdle.  In this case, Ms. Fine did not testify as to her expectation of privacy.  However, as Boswell J. commented, a subjective expectation of privacy can be presumed in some circumstances and reasonableness is not engaged at this first stage.   In my view, in light of the fact that Ms. Fine was taken into a separate room for the search, and given that she was directed to take off various pieces of clothing, a person in her circumstances would have a subjective expectation of privacy and believe that the activity in the private room was not broadcast to other parts of the cell block. 

[73]        The next question to be asked is whether, given all of these circumstances, Ms. Fine’s subjective expectation of privacy was objectively reasonable.  This requires a balancing of individual and state rights.

[74]        The Crown argues that objectively, a detainee’s expectation of privacy in police cells is significantly diminished. This issue was addressed in the decision of R. v. Stillman, supra, and in Mok, where Boswell J. made the following comments at paragraph 66:

[75]        Here, Ms. Fine was told she was going to be searched and was put in a room, with a closed door, while a female police officer and a female commissionaire watched as she removed her clothing. It would have been obvious that the door was closed so that no one but the people in the room could see various parts of Ms. Fine’s body as her clothing was removed. She was not advised that her activities were being videotaped or monitored. So while her expectation of privacy was greatly diminished, in that she knew that two females would see parts of her unclothed body, the idea that many other individuals, including men, could potentially view the strip search if they were in the monitoring room, was not communicated to her.

[76]        I recognize that the use of video cameras in the detention areas of police detachments is necessary for both safety reasons and for the preservation of evidence. Constable McLean viewed their presence as being necessary to “protect” the police against allegations of improper behaviour.  However, the reasonableness of videotaping everything in the detention area should not include videotaping and simultaneously broadcasting a strip search to a central monitoring area. 

[77]        While there may be some merit to the suggestion that videotaping a strip search protects both the officer involved and the detainee by preserving the event in case of improper behaviour, the presence of the second officer (as mandated under Golden), as a witness to the interaction between the detainee being searched and the searching officer, also provides a measure of assurance against police misconduct. That person can observe and make notes of improper behaviour.  Even if the police could justify the need to video tape a strip search, such videotaping should only be captured to a recorder located in the private search room, and accessible only to a very limited number of people if allegations of misconduct arise.  Here, it appears videotaping inside strip search rooms and simultaneous broadcasting to a central monitoring location is a routine policy at the Kelowna detachment, and not related to the unique circumstances of any individual case.  That “routine policy’, breaches the intent and spirt of Golden. The interests of the police of maintaining safety in the search rooms and preserving evidence are not so compelling that they outweigh Ms. Fine’s expectation of privacy that her strip search not be videotaped and monitored remotely.

[78]        As a result, I find that Ms. Fine’s section 8 rights were violated when the police videotaped and broadcast that video to a monitoring room while she was being strip searched. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all of the circumstances.  The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state interest in monitoring the strip search room for safety concerns and the preservation of evidence.

[79]        Section 24(2) of the Charter states:  

[80]        Ms. Fine argues that the breach of her section 8 Charter rights militates in favour of exclusion of the evidence, pointing to the serious impact the breach has had on her personal dignity and the serious nature of this invasion into her privacy. She argues that the procedure set by Golden has been established for 13 years, and the reckless disregard for detainee privacy rights in the Kelowna detachment strikes at the heart of an individual’s right to personal integrity.

[81]        The Crown argues that the breach of Ms. Fine’s section 8 rights was not flagrant or wilful; the police followed the spirit and intent of the guidelines of Golden, and points to the importance of the evidence found, and society’s interests in having this case heard on its merits.

[82]        The onus is on Ms. Fine to establish on a balance of probabilities that the evidence ought to be excluded under s. 24(2) of the Charter.

[83]        The legal principles which govern whether evidence should be excluded under section 24(2) of the Charter were re-framed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32.

[84]        The Court stated that, although the test under section 24(2) is “broad and imprecise", the words of section 24(2) capture its purpose: to maintain the good repute of the administration of justice.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.  An analysis under section 24(2) should focus on the broad impact of admission of the evidence on the long-term repute of the justice system.

[85]        At paragraph 71, the Court stated:

[86]        Grant was applied by the British Columbia Court of Appeal in R. v. Reddy, 2010 BCCA 11, where Frankel, J.A. writing for the court discussed the three factors in Grant, stated at paragraph 92:

[87]        The essential intent of section 24(2) is to exclude only evidence that was obtained in a manner that infringed or denied Ms. Fine’s Charter rights. This means there must be a nexus between the infringement and the evidence proposed for admission. Without that nexus, section 24(2) has no application.  The jurisprudence establishes that a case specific and contextual analysis is required, and that a causal relationship between the breach and the impugned evidence is not necessary. The evidence will be obtained in a manner that infringed a Charter right if the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct.  The connection between the breach and the obtaining of evidence may be temporal, contextual, causal, or a combination of the three: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, but the connection must be more than tenuous: R. v. Goldhart (1996), 1996 CanLII 214 (SCC), 107 C.C.C. (3d) 481 at 492-97 (S.C.C).

[88]        I find that the breach of Ms. Fine’s section 8 rights was temporally connected and part of the same transaction as the discovery of the drugs.  The discovery of the drugs during the strip search occurred when the strip search was being videotaped and broadcast to the monitoring room.  The threshold issue of whether there is a nexus between the Charter breach and the evidence has been established.

[89]        I now turn to the three part Grant analysis.

[90]        Would the admission of the evidence bring the administration of justice into disrepute by sending a message to the public that the courts “effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruits of that unlawful conduct?” Grant, at paragraph 72. 

[91]        Here, the videotaping and broadcasting of Ms. Fine’s strip search to a central monitoring room was not an action taken by the police to specifically target Ms. Fine. I cannot describe it as “wilful”. However, the policy of videotaping and monitoring all strip searches in the Kelowna detachment demonstrates an ignorance of Charter rights. The policy can better be characterized as negligence or wilful blindness, in light of the length of time (13 years) that Golden has governed how strip searches must be conducted in Canada.  In fact, it appears the RCMP in Kelowna is well aware of the principles in Golden, and has taken some steps to ensure officers follow the guidelines. What they have not done, however, is to put their mind to how to ensure   privacy inside a search room while a strip search is undertaken, given their practice of videotaping and monitoring all activities in the cellblock area.  

[92]        As Grant mandates, this sort of failure to consider a detainee’s Charter rights cannot be equated with good faith and must not be rewarded or encouraged by the court.  I have also considered the length of time Ms. Fine’s section 8 rights were breached (approximately 6 minutes), and the fact that this breach was singular, and not combined with other Charter breaches.  This was not part of a pattern of police misconduct and there is no evidence of bad faith.  There is no evidence that the Kelowna RCMP has been warned in the past against videotaping secondary search rooms, and has chosen to ignore past rulings of the Court. Considered in the context of the other factors of this case, it militates towards exclusion of the evidence, although I would place it at the less serious end of the spectrum of police misconduct.

[93]        Under this part of the Grant analysis, I must examine the impact of the breach from the prospective of Ms. Fine. As noted in Grant at paragraph 76:

[94]        Section 8 of the Charter recognizes a person’s right to be secure against unreasonable search and seizure. In Golden, the Supreme Court of Canada found that, even in the context of a lawful arrest and reasonable grounds for a strip search, the search itself represents a significant invasion of privacy and is often humiliating, degrading and a traumatic experience, and even the most sensitively conducted strip search is highly intrusive.

[95]        Ms. Fine did not testify and consequently there is no evidence on how she viewed the existence of the video camera and the monitoring and the impact it had upon her.  The video itself was not marked as an exhibit, and it is not possible to determine if any parts of Ms. Fine’s body could be seen by someone watching the video.  As the Crown points out, there is no evidence that anyone, in fact, was watching the video feed in the monitoring room.  

[96]        However, the mere fact that the strip search was video recorded and broadcast to a monitoring room represents a serious violation of Ms. Fine’s section 8 rights. Although greatly diminished, she had an expectation of privacy while in the secondary search room while undergoing the inherently humiliating procedure of a strip search. I find that the impact of the breach of her Charter protected interests was significant and militates in favour of the exclusion of the evidence.

[97]        Under the third part of the Grant analysis, I must focus on the reliability of the evidence.  I must determine if the truth-seeking function of the criminal trial process is better served by the admission of evidence or by its exclusion.  Here, the evidence is highly reliable and probative. Not only were there large amounts of drugs found, but they were packaged in a manner that clearly indicates a well-organized enterprise in trafficking.  Heroin and crack cocaine are highly addictive drugs which come with tremendous societal costs.  Public interest in adjudication is heightened when drugs like this are being distributed in the afternoon in downtown Kelowna.

[98]        I find that the evidence would have been discovered regardless of this Charter breach. The charges Ms. Fine faces are very serious, and if convicted, she faces a mandatory minimum sentence of one year. 

[99]        As the facts disclose in this case, drug trafficking in Kelowna, particularly in the downtown core, is common and frequent.  Constable Craven watched numerous street level drug transactions by more than one individual, over a short period of time. The only way the street level dealers can continue is if they are supplied by people farther up in the drug trafficking world than they are.   The sale of drugs is highly profitable for dealers, and extremely destructive to users and the community.

[100]     I find that the evidence is highly reliable and is essential to the Crown’s case.  It would have been discovered notwithstanding the breach. Society has a significant interest in seeing these charges determined on their merits.  These factors weigh strongly in favour of the admission of the evidence.

[101]     The final part of the section 24(2) analysis under Grant involves balancing the various factors as discussed under the three factors outlined above.  The Supreme Court of Canada in R. v. Harrison, 2009 SCC 34 (CanLII), [2009] SCJ 34 stated at paragraph 36:

[102]     The breach of Ms. Fine’s section 8 rights against an unreasonable search was not trivial.  The broadcast of the video of that search to a monitoring room was the most egregious part of the breach, and the videotaping itself was also not carried out in a way that could ensure that Ms. Fine’s privacy was respected. Although this first factor militated towards exclusion of evidence, I found the police misconduct less serious than other cases.  The Charter infringement had an impact on Ms. Fine’s Charter-protected interests and favoured exclusion. On the other hand, the evidence discovered during the strip search was non-conscripted. The drugs seized constitute highly reliable evidence tendered on serious charges. The societal interest in having this case heard on its merits is high. This factor weighs in favour of admission.

[103]     The police conduct in this case showed an ignorance of the law rather than a pattern of misconduct and cumulative breaches of Ms. Fine’s Charter rights. The police were able to respect Ms. Fine’s section 8 rights insofar as following all of the guidelines in Golden but one. The breach occurred over a six minute period of time, and although I am satisfied that the video was broadcast to a monitoring room, I am unable to conclude Ms. Fine suffered any further indignity by having other police officers or commissionaires watch it. Nor am I able to conclude what parts, if any, of Ms. Fine’s body were visible on the video.

[104]     Balancing the relevant considerations and having regard to the long-term interests of the administration of justice, I find that the admission of the evidence would not bring the administration of justice into disrepute. It is admissible under section 24(2) of the Charter.