Pubdate: Thu, 21 Sep 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Author: Jacques Gallant
Page: GT7


Toronto judge excludes evidence of drugs found in strip search

Another unlawful strip search, another crumbling criminal case.

A Toronto judge has thrown out all drug evidence seized from Stuart
MacPherson, finding Toronto police had no reasonable grounds to pull
back his pants and boxer shorts at the scene of his arrest to locate
concealed drugs near his tail bone.

Ontario Court Justice Sheila Ray also noted in her ruling released
last week that at least one of the officers did not seem to even be
aware that there was a Toronto police policy on strip searches, and
that both officers thought what they did was entirely

"The officers were ignorant of the law," the judge wrote. "They
thought that exigent circumstances justified what they did and that
what they did was not a strip search. They were wrong and this should
not have happened."

The judge excluded the drug evidence, finding MacPherson's charter
right to unreasonable search and seizure had been violated.

Strip-searching is "inherently humiliating and degrading," the Supreme
Court of Canada ruled in a landmark case 17 years ago known as R v.
Golden, and should only be done when there are reasonable grounds,
such as looking for weapons or evidence related to the arrest.

A person should also not be stripsearched outside of a police station
unless there are exceptional circumstances, Ray said.

It's the latest case of a criminal matter put in jeopardy because
police failed to follow the case law and their own policies on

Toronto police, in particular, have faced repeated criticism on the
issue, as other court cases have also shown that officers are not
always aware of the various types of strip searches and when and how
they can be conducted.

"It is disheartening to learn that Toronto's front line officers are
still not aware of legal precedents and internal policies governing
the limits on strip searches that have been in place for well over a
decade," said criminal defence lawyer Daniel Brown, who was not
involved in the case.

"This is especially so given the sheer volume of serious criminal
cases that are withdrawn or dismissed each year due to non-compliance
with this constitutional protection."

The province-wide problem has gotten so serious that the Office of the
Independent Police Review Director is currently conducting a systemic
review of police strip search practices. Toronto police spokesperson
Meaghan Gray said the officers involved would not be commenting and
that Ray's ruling will be the subject of a professional standards

She said the police service does have a policy on Level 3 searches -
which is the removal of some or all of a person's clothing and a
visual inspection of the body - and that it describes when and how
such a search can be performed.

It is the most intrusive search of a person with the exception of a
body cavity search, known as a Level 4 search.

MacPherson's next court date is Oct. 10. His lawyer, G.J. Partington,
told the Star it would be "most improbable" for the Crown to proceed
on a drug case that no longer has any admissible drug evidence.

He said he expects his client to be found not guilty on charges that
include possession of crack cocaine for the purpose of trafficking and
simple possession of marijuana.

Officers Matthew Steele and James Doyle had received information that
a car matching MacPherson's had been driving erratically in the
neighbourhood, Ray wrote in her ruling. She said they had good reason
to speak with MacPherson at that point, in order to check his sobriety
and documents and, if there was no issue, to let him continue on his

The officers testified that when they approached the car, they saw
hand movements "that suggested Mr. MacPherson was concealing something
down his pants," Ray wrote, finding there was a legitimate concern
that MacPherson could be hiding a weapon.

However, the judge said all that was necessary to determine if
MacPherson had a weapon was a pat down search, which did not happen.

Ray disagreed with the officers that there was urgency in seeing what
MacPherson had concealed in his boxer shorts.

They pulled back his pants and boxers to find baggies of drugs at his
tail bone, leaving MacPherson's buttocks exposed for several seconds.

"It was totally unnecessary to verify in the field what exactly was
being stuffed down the pants or underwear," she said. "That could have
waited. There was no urgency. Nothing in Mr. MacPherson's pants was
running away."

The police believed that the search inside MacPherson's clothing did
not constitute a strip search, but Ray found otherwise.

"It involved the rearrangement of the boxer shorts and pants, that is,
pulling them back. This permitted a visual inspection of a private
area, the buttocks, and further exposed undergarments, which were
already partially exposed. This is a strip search."
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